CIVIL PROCEDURE REVIEWER
2A ACADEMIC YEAR 2019-2020
UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
2
CIVIL PROCEDURE REVIEWER
2A ACADEMIC YEAR 2019-2020
UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
3
CIVIL PROCEDURE REVIEWER
2A ACADEMIC YEAR 2019-2020
UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
4
CIVIL PROCEDURE REVIEWER
2A ACADEMIC YEAR 2019-2020
UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
5
CIVIL PROCEDURE REVIEWER
2A ACADEMIC YEAR 2019-2020
UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
6
CIVIL PROCEDURE REVIEWER
GENERAL PRINCIPLES OF REMEDIAL LAW
CONCEPTS IN REMEDIAL LAW
Remedial law provides the “means and methods whereby
causes of action may be effectuated, wrongs redressed and
reliefs obtained” (Black’s Law Dictionary, 5th Ed., 1162,
citing Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556,
149 N.W.2d 789, 792). It refers to how to enforce a
substantive right.
Remedial law plays a vital role in the administration of justice.
It lies at the very core of procedural due process, which
means a law which hears before it condemns, one which
proceeds upon inquiry and renders judgment only after trial,
and contemplates an opportunity to be heard before
judgment is rendered (Albert v. University Publishing,
G.R. No. L-19118, January 30, 1965).
Nature of remedial law
The Rules of Court, promulgated by authority of law, have
the force and effect of law (Alvero v. De La Rosa et.al. G.R.
No. L-286, March 29, 1946) if not in conflict with positive law.
The Rules are subordinate to statutes, and in case of conflict,
the latter will prevail (Altavas v. Court of Appeals, 106 Phil.
940, 943).
Strict compliance with the rules has been held mandatory
and imperative, so that failure to pay the docket fee in the
Supreme Court, within the period fixed for that purpose, will
cause the dismissal of the appeal (Alvero. De La Rosa
et.al. G.R. No. L-286, March 29, 1946).
Scope of civil procedure in the Rules of Court
Civil procedure includes:
1. Ordinary civil actions (Rules 1-56);
2. Provisional remedies (Rules 57-61); and
3. Special civil actions (Rules 62-71)
Substantive Law v. Remedial Law
SUBSTANTIVE LAW
Creates, defines, and
regulates rights and duties
concerning life, liberty, or
property.
Creates vested rights.
Enacted by Congress.
REMEDIAL LAW
Does not create rights or
obligations but lays down
the methods by which the
rights and obligations
arising from substantive
law
are
protected,
enforced and given effect.
Does not create vested
rights.
SC
is
expressly
empowered
to
promulgate
procedural
rules.
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Generally prospective in
application.
GR: May be applied
retroactively.
(In Rules of Procedure, no
one can claim a vested
right.
A person has no vested
right in any remedy, and a
litigant cannot insist on
the application to the trial
of his case, whether civil
or criminal, of any other
than the existing rules of
procedure (Tan Jr. v. CA,
G.R.
No.
136368,
January 16, 2002)).
XPNs:
1. Statute
itself
expressly
or
by
necessary implication
provides that pending
actions are excepted
from its operation;
2. If applying the rules to
pending proceedings
would impair vested
rights;
3. If to do so would not
be feasible or would
work injustice; or
4. If to do so would
involve
intricate
problems
of
due
process or impair the
independence of the
courts (Tan v. Court
of Appeals, 373
SCRA 524, 537).
Q: A new law under the Family Code limits the rights of
an illegitimate child to seek recognition of filiation. If it is
based on secondary evidence, the illegitimate child can
only file a case against the putative father within the
lifetime of the father. But in this case, the child was born
before the effectivity of the Family Code. Whether the
child’s right to an action for recognition, which is granted
by Art. 285 of the Civil Code, had already vested prior to
the enactment of the Family Code?
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CIVIL PROCEDURE REVIEWER
A: Yes. The Family Code cannot impair or take the child’s
right to file an action for recognition because that right had
already vested prior to the Family Code’s enactment.
Art. 285 is a substantive law, as it gives the child the right
to file an action for recognition within the specified period.
“Substantive Law creates substantive rights. Substantive
law is that part of the law which creates, defines and
regulates rights, or which regulates the rights and duties
which give rise to a cause of action; that part of the law
which courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of
enforcing rights or obtains redress for their invasion.” “The
test is whether the rule really regulates procedure, that is,
the judicial process for enforcing rights and duties
recognized by substantive law” (Bernabe v. Alejo, 374
SCRA 180).
NOTE: Not all provisions in the Family Code are
substantive laws. There are rules of procedure under the
Family Code such as Article 40, which provides:
Article 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage void.
Q: The period before the decision becomes final and
executory is 15 days from receipt of the decision. The
decision was received by the plaintiff on October 1 and
was received by the defendant on October 5. When will
the decision become final and executory?
A: October 21. The decision is final only as to the plaintiff
on October 17, which means he cannot file a Motion for
Reconsideration (MR), Motion for New Trial (MNT) or
Appeal after said date. Defendant can still file MR until
October 20 because his period of time is until October 20.
Hence, if the two parties did not do anything, the decision
becomes final and executory as to them and as to the
court on October 21.
Q: The period before the decision becomes final and
executory is 15 days from receipt of the decision. The
decision was received by the plaintiff on October 1 and
was received by the defendant on October 5. On October
22, a new law will be effective extending to 30 days the
period of appeal. If the MR was filed on October 21, is it
filed on time?
A: No. By October 21, the decision has already attained
finality. Even if the new law, which took effect the day after
it became final and executory extending the period of
appeals to 30 days, the period cannot be extended. The
new law cannot be retroactively applied because it is
already final and executory.
CA’s ruling was based on the prevailing rule which provided that
the 60-day period for filing a petition for certiorari shall be
reckoned from receipt of the assailed decision or order.
However, there is a new law which no longer provides such.
Instead it provides that the 60-day period shall be reckoned from
receipt of the order denying the motion for reconsideration. Did
the CA correctly dismissed the petition for having been filed out
of time?
A: No. The amendment under A.M. 00-2-03-SC is procedural or
remedial in character. It is settled that procedural laws do not
come within the legal conception of a retroactive law, or the
general rule against retroactive operation of statutes. They may
be given retroactive effect to actions pending and undetermined
at the time of their passage and this will not violate any right of
a person who may feel that he is adversely affected, inasmuch
as there is no vested rights in rules of procedure.
Thus, by virtue of this retroactive application of A.M. 00-2-03SC, we hold that the instant petition for certiorari was filed on
time (Republic vs. CA, G.R. No. 141530, March 18, 2003). The
new law was given retroactive effect because the decision has
not yet attained finality.
OBJECTIVE OF PROCEDURAL LAWS
Objective of Rules of Court
To secure a: [JuSI]
1. Just;
2. Speedy; and
3. Inexpensive disposition of every action and
proceeding (Rule 1, Section 6, RoC).
Implementation of remedial laws
Remedial laws are implemented through the judicial system,
including the prosecutor service of courts and quasi-judicial
agencies.
Rule on compliance with procedural rules
GR: A zealous observance of the rules is still the general
course of action as it serves to guarantee the orderly, just
and speedy disposition of cases (Ben Line Agencies
Philippines, Inc. Madson, G.R. No. 195887, January 10,
2018).
It needs to be reiterated that compliance with the procedural
rules is still the general rule, and abandonment thereof
should only be done in the most exceptional circumstance
(Riano, 2019).
The following shall be strictly construed:
1. Reglementary periods;
2. Rule on forum shopping; and
3. Service of summons
XPN: Liberal interpretation of the Rules.
Rule on liberal construction
Q: The government filed a petition for certiorari with the CA,
which the latter dismissed because it was filed out of time. The
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CIVIL PROCEDURE REVIEWER
The Rules shall be liberally construed in order to promote
their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding (Rule 1,
Section 6, RoC).
While jurisprudence recognizes the importance of
procedural rules in ensuring effective enforcement of
substantive rights, the law abhors technicalities that
impede the cause of justice (Miranda v. Sandiganbayan,
G.R. Nos. 144760-61, August 2, 2017).
The rule on liberal construction involves a relaxation of the
procedural rules when their rigid application would hinder
substantial justice. Rules of procedure are mere tools
designed to facilitate the attainment of justice (Riano,
2019).
Burden of invoking the liberal construction
Parties praying for the liberal interpretation of the rules
must be able to hurdle that heavy burden of proving that
they deserve an exceptional treatment (Prieto v. Alpadi
Development Corporation, G.R. No. 191025, July 31,
2013).
Invocation of “interest of substantial justice”
The bare invocation of the “interest of substantial justice”
is not a magic wand that will automatically compel this
Court to suspend procedural rules.
The general objective of procedure is to facilitate the
application of justice to the rival claims of contending
parties, bearing always in mind that procedure is not to
hinder but to promote the administration of justice. In this
case, however, such liberality in the application of rules of
procedure may not be invoked if it will result in the wanton
disregard of the rules or cause needless delay in the
administration of justice. It is equally settled that, save for
the most persuasive of reasons, strict compliance is
enjoined to facilitate the orderly administration of justice
(Sps. Bergonia v. CA, G.R. No. 189151, January 25,
2012).
Q: The dismissed employees filed a petition for certiorari
with the CA but it was dismissed. They filed an MR but
placed the wrong docket number hence it was ruled that
the MR was inexistent. Is the ruling correct?
A: Yes. The CA is correct when it ruled that petitioners'
MR is "non-existent” for bearing an erroneous docket
number. However, we opt for liberality in the application
of the rules to the instant case in light of the following
considerations. First, the rule that negligence of counsel
binds the client may be relaxed where adherence thereto
would result in outright deprivation of the client's liberty or
property or where the interests of justice so require.
Second, this Court is not a slave of technical rules, shorn
of judicial discretion - in rendering justice, it is guided by
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the norm that on the balance, technicalities take a
backseat against substantive rights. Thus, if the
application of the rules would tend to frustrate rather than
promote justice, it is always within this Court's power to
suspend the rules or except a particular case from its
application (Magallanes v. Sun Yat Sen Elementary
School, et.al, G.R. No. 160876).
Q: The RTC dismissed the complaint because it appears
that Atty. Villareal, who filed for and in behalf of the plaintiff
corporation, was not authorised. The CA upheld the RTC
ruling holding Atty. Villareal not authorised to file the
second suit. Is the CA correct?
A: Yes. The CA is correct in dismissing the case because
there was no proof submitted that Atty. Villareal was duly
authorized to file the complaint and sign the verification
and certification against forum shopping. The Rules of
Court, specifically Section 2 of Rule 3 thereof, requires
that 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.
Under our procedural rules, "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." Procedural rules are not to be disdained as mere
technicalities that may be ignored at will to suit the
convenience of a party. Adjective law is important in ensuring
the effective enforcement of substantive rights through the
orderly and speedy administration of justice. These rules are
not intended to hamper litigants or complicate litigation but,
indeed to provide for a system under which a suitor may be
heard in the correct form and manner and at the prescribed
time in a peaceful confrontation before a judge whose
authority they acknowledge (Philippine Numismatic and
Antiquarian Society v. Aquino, G.R. No. 206617, January
30, 2017).
APPLICATION OF PROCEDURAL LAWS
Q. Linda and First Union failed to settle their outstanding
obligations, which prompted BPI to file a complaint for collection
of sum of money with the RTC. The complaint’s verification and
certificate of non-forum shopping were signed by Asis and Ong,
however, there was no Secretary’s Certificate or Board
Resolution attached to evidence their authority to file the
complaint. Did BPI failed to comply with the procedural
requirements?
A: Yes. The verification of a complaint and the attachment of a
certificate of non-forum shopping are requirements that – as
pointed out by the Court, time and again – are basic, necessary
and mandatory for procedural orderliness. The rule for the
submission of a certificate of non-forum shopping, proper in form
and substance, remains to be a strict and mandatory rule; any
liberal application has to be justified by ample and sufficient
reasons that maintain the integrity of, and do not detract from
the mandatory character of the rule (BPI v. CA, G.R. No.
168313, October 6, 2010).
Application of the Rules of Procedure may be relaxed
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CIVIL PROCEDURE REVIEWER
Where strong considerations of substantive justice are
manifest in the petition, the strict application of the rules
of procedure may be relaxed, in the exercise of its equity
jurisdiction. Thus, a rigid application of the rules of
procedure will not be entertained if it will obstruct rather
than serve the broader interests of justice. If the strict
application of the rules would tend to frustrate rather than
promote justice, this Court is not without power to
exercise its judicial discretion in relaxing the rules of
procedure (CMTC International Marketing Corp v.
Bhagis International Trading Corp., G.R. No. 170488,
December 10, 2012).
Judicial rules of procedure do not apply to nonjudicial proceedings
Labor disputes are not governed by the strict and
technical rules on evidence and procedure observed in
the regular courts of law. Technical rules of procedure are
not applicable in labor cases, but may apply only by
analogy or in a suppletory character, as when there is a
need to attain substantial justice and an expeditious,
practical, and convenient solution to a labor problem
(Sime Darby Employees Association v. NLRC, G.R.
No. 119205, April 15, 1998).
Quasi-judicial and administrative bodies are not bound by
the technical rules of procedure, that technicalities should
never be used to defeat the substantive rights of a party,
and that every litigant should be afforded the opportunity
for the proper and just determination of his cause, free
from the constraints of technicalities (Riano, 2019;
Birkenstock Orthopaedie GMBH and Co. KG v.
Philippine Shoe Expo Marketing Corporation, G.R.
No. 194307, November 20, 2013).
Need to follow fundamental evidentiary rule
While administrative or quasi-judicial bodies are not
bound by the technical rules of procedure, this rule cannot
be taken as a license to disregard fundamental
evidentiary rules; the decision of the administrative
agencies and the evidence it relies upon must, at the very
least, be substantial (Primo v. Mendoza Vda. de
Erederos, G.R. Nos. 172532and 172544-45, November
20, 2013).
RULE-MAKING POWER OF THE SUPREME COURT
Extent of the rule-making power of the SC
(P-PAIL)
It has the power to promulgate rules concerning:
1. The protection and enforcement of constitutional
rights;
2. Pleading, practice, and procedure in all courts;
NOTE: The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries the power to overturn judicial
precedents on points of remedial law through the
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amendment of the Rules of Court (Pinga v. The
Heirs of German Santiago, G.R. No. 170354,
June 30, 2006).
3.
4.
5.
The admission to the practice of law;
The integrated bar;
Legal assistance to the underprivileged. [Art. VIII,
Sec. 5(5), 1987 Constitution]
Limitations on the rule making power of the SC
1.
2.
3.
The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases;
The rules must be uniform for all the courts of the
same grade; and
The rules must not diminish, increase or modify a
substantive right (Riano, 2019).
Power of the SC to amend the Rules of Court
The Supreme Court has the power to amend, repeal or even
establish new rules for a more simplified and inexpensive
process, and the speedy disposition of cases (Neypes v.
Court of Apeals).
Power of the SC to suspend the application of the Rules
of Court and exempt a case from its operation
The courts have the power to relax or suspend technical or
procedural rules or to except a case from their operation
when compelling reasons so warrant or when the purpose of
justice requires it. What constitutes good and sufficient cause
that would merit suspension of the rules is discretionary upon
the courts (Commissioner of Internal Revenue v. Migrant
Pagbilao Corporation, G.R. No. 159593, October 12,
2006).
Important factors that would warrant the suspension of
the Rules of Procedure
The suspension of the Rules by the Court is not based on
whim, caprice or flimsy reasons. Jurisprudence cite
important factors that would warrant such suspension, like:
1.
2.
3.
4.
5.
Existence of special or compelling circumstances;
Merits of the case;
A cause not entirely attributable to the fault or
negligence of the party favoured by the suspension
of rules;
Lack of any showing that the review sought is
merely frivolous and dilatory; and
The other party will not be unjustly prejudiced
thereby (Sarmiento v. Zaratan, G.R. No. 167471,
February 5, 2007).
Suspending locus standi requirement
Being a mere procedural technicality, the requirement on
locus standi may be waived by the Court in the exercise
of its discretion given the transcendental importance of
the constitutional issues it raises as when the petition
challenges the constitutionality of the manner by which
the President of the Philippines makes appointments to
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CIVIL PROCEDURE REVIEWER
the judiciary (Aguinaldo v. Aquino III, G.R. No. 224302,
November 29, 2016).
4.
5.
Pro hac vice rule
Pro hac vice is a Latin term meaning “for this one only.”
When the ruling is qualified as such, the same cannot be
used as a precedent to govern other cases (Highpoint
Development Corporation v. Republic, G.R. No.
224389, November 7, 2018).
6.
DOCTRINES
Doctrine of Hierarchy of Courts
Under the doctrine of hierarchy of courts, where courts
have concurrent jurisdiction over a subject matter, such
concurrence of jurisdiction does not grant the party
seeking relief the absolute freedom to file a petition in any
court of his choice. Pursuant to this doctrine, a case must
be filed first before the lowest court possible having the
appropriate jurisdiction, except if one can advance a
special reason which would allow a party a direct resort to
a higher court (Riano, 2019).
The rule on hierarchy of courts determines the venue of
appeals. Such rule is necessary to prevent inordinate
demands upon the Court’s precious time and attention
which are better devoted to matters within its exclusive
jurisdiction, and to prevent further overcrowding of the
Court’s docket (Ang v. Mejia, G.R. No. 167533, July 27,
2007).
NOTE: The rationale is two-fold:
1. It would be an imposition upon the precious time
of the Supreme Court; and
2. It would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of
cases, which in some instances, had to be
remanded or referred to the lower court as the
proper forum under the rules of procedure, or as
better equipped to resolve the issues because the
Supreme Court is not a trier of facts (Heirs of
Hinog v. Melicor, G.R. No. 140954, April 12,
2005).
NOTE: The Supreme Court is a court of last resort and must
so remain if it is to satisfactorily perform the duty assigned to
it.
When doctrine of hierarchy of courts may be
disregarded
Jurisprudence allowed a direct resort to a higher court in
certain cases like:
1.
2.
3.
When there are special and important reasons
clearly stated in the petition;
When dictated by public welfare and the
advancement of public policy;
When demanded by the broader interest of justice;
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7.
When the challenged orders were patent nullities;
When analogous exceptional and compelling
circumstances called for and justified the immediate
and direct handling of the case (Republic v. Caguioa,
et.al., G.R. No. 17485, February 20, 2013);
When there are genuine issues of constitutionality that
must be addressed at the most immediate time (The
Diocese of Bacolod v. Commission on Elections,
G.R. No. 205728, January 21, 2015); and
When the issues raised are of transcendental
importance (Rama v. Moises, G.R. No. 197146,
August 8, 2017).
Doctrine of Non-Interference or Doctrine of Judicial
Stability
GR: No court can interfere by injunction with the judgments
or orders of another court of concurrent jurisdiction having
the power to grant the relief sought by the injunction (Atty.
Cabili v. Judge Balindog, A.M. No. RTJ-10-2225,
September 6, 2011).
XPN: The doctrine does not apply where a third-party
claimant is involved (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991).
The rationale for the rule is founded on the concept of
jurisdiction: a court that acquires jurisdiction over the case
and renders judgment therein has jurisdiction over its
judgment, to the exclusion of all other coordinate courts, for
its execution and overall its incidents, and to control, in
furtherance of justice, the conduct of ministerial officers
acting in connection with this judgment (United Alloy v.
UCPB, G.R. No. 179257, November 23, 2015).
Settled is the rule that where the law provides for an appeal
from the decisions of administrative bodies to the Supreme
Court or the Court of Appeals, it means that such bodies are
co-equal with the Regional Trial Courts in terms of rank and
stature, and logically, beyond the control of the latter
(Philippine Sinter Corporation v. Cagayan Electric
Power And Light Co. Inc., G.R. No. 127371, April 25,
2002).
Doctrine of Immutability of Judgments
Otherwise known as the principle of conclusiveness of
judgments, this doctrine provides that a judgment that has
attained finality can no longer be disturbed. It is sometimes
referred to as “preclusion of issues” or “collateral estoppel”
whereby, issues actually and directly resolved in a former
suit cannot again be raised in any future case between the
same parties (Riano, 2014).
Two-fold purpose:
1. To avoid delay in the administration of justice and
thus, procedurally, to make orderly the discharge of
judicial business; and
2. To put an end to judicial controversies, at the risk
of occasional errors, which is precisely why the
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CIVIL PROCEDURE REVIEWER
courts exist (Dare Adventure Farm Corporation
v. CA, G.R. No. 161122, September 24, 2012).
NATURE OF PHILIPPINE COURTS
Court is an organ of the government, belonging to the
judicial department, whose function is the application of laws
to controversies brought before it and the public
administration of justice (Riano, 2019).
Philippine courts are courts of both law and equity. Hence,
both legal and equitable jurisdictions are dispensed with in
the same tribunal (U.S. v. Tamparong, 31 Phil. 321).
Equity is “justice outside legality” (Ocampo v. Enriquez,
G.R. No. 225973, August 8, 2017). Equity regards the spirit
of the law and not its letter, the intent and not the form, the
substance rather than the circumstance (Air Manila v. Court
of Industrial Relations, 83 SCRA 579, 589).
Courts of Law v. Courts of Equity
COURTS OF LAW
Any
tribunal
duly
administering the laws of
the land.
Decides a case according
to the promulgated law.
COURTS OF EQUITY
Any tribunal administering
justice outside the law,
being ethical rather than
jural and belonging to the
sphere of morals rather
than of law. It is grounded
on
the
precepts
of
conscience and not on any
sanction of positive law, for
equity finds no room for
application where there is
law (Herrera, 2007).
Adjudicates a controversy
according to the common
precepts of what is right
and just without inquiring
into the terms of the
statutes.
Civil courts and Criminal courts
Civil courts are those which determine controversies
between private persons. Criminal courts are those which
adjudicate offenses alleged to have been committed against
the State (Riano, 2019).
Q. X moved for the suspension of the proceedings in the
criminal case to await the decision in the civil case. For his
part, Y moved for the suspension of the two actions to
proceed independently of each other, therefore, no
suspension of action is authorized. Which of them is correct?
Explain.
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A: Neither of them is correct. Both substantive law (Art. 33 of
the Civil Code) and procedural law (Rule III, Sec. 3, Rules of
Criminal Procedure) provide for the two actions to proceed
independently of each other, therefore, no suspension of action
is authorized (BAR 2010).
Courts of record
These are courts whose proceedings are enrolled and which are
bound to keep written records of all trials and proceedings
handled by them (Luzano v. Romero, et al., G.R. No. L-33245,
September 30, 1971).
Functions of court
1.
2.
3.
Decide actual controversies and not to give opinions
upon abstract propositions (Guarduno v. Diaz, 46
Phil. 472);
Apply the law; and
Interpret the law.
Court v. Judge
COURT
It is a tribunal officially
assembled under authority
of law.
JUDGE
Simply an officer of such
tribunal.
Organ of the government
with a personality distinct
and separate from the
person or judge. Being in
imagination comparable to a
corporation.
One who sits on the court.
A physical person.
An office.
A public officer.
Disqualification of the judge
does not affect the court.
May be disqualified.
Constitutional Court v. Statutory Court
CONSTITUTIONAL
COURT
Created
by
the
Constitution, e.g. SC.
Cannot be abolished by
Congress
without
amending
the
Constitution.
STATUTORY COURT
Created by law other than
Constitution,
e.g.
CA,
Sandiganbayan, CTA, RTC,
MTC, MeTC, MCTC, MTCC.
May be abolished by
Congress
by
simply
repealing the law which
created those courts.
NOTE: All courts in the Philippines, except the SC, are
statutory courts. They have been created by statutory
enactments (Riano, 2011).
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CIVIL PROCEDURE REVIEWER
The Sandiganbayan is only a constitutionally-mandated
court since, although its existence is provided under the
Constitution, its creation was by statutory enactment.
Reorganization Act of 1980). It is in this context that the
RTC is considered a court of general jurisdiction (Riano,
2019).
Classification of courts
Concurrent jurisdiction
Concurrent jurisdiction, also called coordinate jurisdiction, is
the power of different courts to take cognizance of the same
subject matter. Where there is concurrent jurisdiction, the
court first taking cognizance of the case assumes jurisdiction
to the exclusion of other courts. The concurrent jurisdiction
among courts of different ranks is subject to the doctrine of
hierarchy of courts (Riano, 2019).
1. Regular courts
a. Supreme Court;
b. Court of Appeals;
c. Regional Trial Courts; and
d. Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts;
2. Special courts
a. Sandiganbayan;
b. Court of Tax Appeals; and
c. Shari’a District Courts, Shari’a Circuit
Courts;
3. Quasi-Courts or Quasi-Judicial Agencies
Courts of original jurisdiction v. Courts of appellate
jurisdiction
COURTS OF
ORIGINAL
JURISIDCTION
Courts
exercising
jurisdiction in the first
instance.
COURTS OF
APPELLATE
JURISDICTION
Superior courts reviewing
and
deciding
cases
previously decided by a
lower court (Riano, 2019).
Courts of general jurisdiction v. Courts of special
jurisdiction
COURTS OF GENERAL
JURISDICTION
Those with competence to
decide on their own
jurisdiction and to take
cognizance of all cases,
civil and criminal, of a
particular nature (Riano,
2019)
COURTS OF SPECIAL
JURISDICTION
Those which have only a
special jurisdiction for a
particular purpose or are
clothed with special
powers
for
the
performance of specified
duties beyond which they
have no authority of any
kind (Riano, 2019)
NOTE: A court may also be considered ‘general’ if it has
the competence to exercise jurisdiction over cases not
falling within the jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial functions
(Secs. 19[6] and 21, B.P. 129, Judiciary
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JURISDICTION
It is the power and authority of the court to hear, try and
decide a case. It includes the power to determine whether it
has the authority to hear and determine the controversy
presented, and the right to decide whether the statement of
facts that confer jurisdiction exists, as well as other matters
that arise in the case legitimately (Riano, p. 59, 2019).
It also includes the authority of the court to execute its
decisions. The power to control the execution of the decision
of the court is an essential part of the jurisdiction and that the
most important part of a litigation, whether civil or criminal, is
the process of execution of decisions (Echegaray v.
Secretary of Justice, 301 SCRA 96, January 19, 1999).
Aspects of Jurisdiction
1.
2.
3.
4.
Jurisdiction over the subject matter
Jurisdiction over the parties
a. Jurisdiction over the plaintiff
b. Jurisdiction over the defendant
Jurisdiction over the issues
Jurisdiction over the res or thing involved in the
litigation.
How the Court acquires jurisdiction over such
1. Jurisdiction over the plaintiff or petitioner
Acquired by filing of the complaint, petition or
initiatory pleading before the court by the plaintiff or
petitioner.
2. Jurisdiction over the defendant or respondent
Acquired by the voluntary appearance or
submission by the defendant or respondent to the
court or by coercive process issued by the court to
him, generally by the service of summons.
3. Jurisdiction over the subject matter
Conferred by law and unlike jurisdiction over the
parties, it cannot be conferred on the court by the
voluntary act or agreement of the parties.
4. Jurisdiction over the issues of the case
Determined and conferred by the pleadings filed
in the case by the parties, or by their agreement
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CIVIL PROCEDURE REVIEWER
in a pre-trial order or stipulation, or, at times, by
their implied consent as by the failure of a party
to object to evidence on an issue not covered by
the pleadings.
5. Jurisdiction over the res
Acquired by the actual or constructive seizure by
the court of the thing in question, thus placing it in
custodia legis, as in attachment or garnishment;
or by provision of law which recognizes in the
court the power to deal with the property or
subject matter within its territorial jurisdiction, as
in land registration proceedings or suits involving
civil status or real property in the Philippines of a
non-resident defendant.
Jurisdiction over the subject matter
Power of a particular court to hear the type of case that is
then before it. It also refers to the jurisdiction of the court
over the class of cases to which a particular case belongs
(Black’s Law Dictionary, 5th Ed.).
Duty of the court when there is lack of jurisdiction
over the subject matter
It is the duty of the court to dismiss an action whenever it
appears that the court has no jurisdiction over the subject
matter (Tagalog v. Lim Vda. De Gonzalez, G.R No.
201286, July 18, 2014). Even if the question of jurisdiction
over the subject matter was not raised by either of the
parties, the courts will have to first address such question
before delving into the procedural and substantive issues of
the case (Bureau of Customs v. Devanadera, G.R. No.
193253, September 8, 2015).
Effect of lack of jurisdiction over the subject matter
The general rule is that proceedings conducted, or decisions
made by a court are legally void where there is an absence
of jurisdiction over the subject matter. Where lack of
jurisdiction over the subject matter appears on the record, an
appellate court may, on its own initiative, dismiss the action.
When the court dismisses the complaint for lack of
jurisdiction over the subject matter, it is performing the only
authority that it has under the circumstances, i.e., to order
such dismissal. It would be error for that court to refer or
forward the case to another court with proper jurisdiction
(Riano, p. 62-63, 2019).
Jurisdiction v. Cause of action
JURISDICTION
It is the authority to hear
and determine a cause –
the right to act in a case.
CAUSE OF ACTION
It is the act or omission by
which a party violates a
right of another (Rule 2,
Section 2, RoC).
DETERMINED BY THE LAW IN FORCE AT THE TIME
OF THE COMMENCEMENT
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The law applicable to the case
Jurisdiction being a matter of substantive law, the
established rule is that the statute in force at the time of
the commencement of the action determines the
jurisdiction of the court (Riano, p. 69, 2019; Sps.
Estacion v. Hon. Secretary of DAR, G.R. No. 163361,
March 12, 2014).
The court’s jurisdiction will be dependent on the time
when the petitioner files his complaint. Once the
complaint has been filed with the court that has proper
jurisdiction, it latches on to that and it will not be ousted
upon by subsequent events.
Doctrine of Adherence of Jurisdiction
The doctrine of adherence of jurisdiction means that once
jurisdiction has attached, it cannot be ousted by subsequent
happenings or events, although of a character which would
have prevented jurisdiction from attaching in the first
instance. The only recognized exception to the rule arise
when: (1) there is an express provision in the statute, or (2)
the statute is clearly intended to apply to actions pending
before its enactment (Riano, pp. 78-79, 2019).
Q: At the time the case was filed, the jurisdiction over the
subject matter was vested in the RTC. Subsequently, a new
law was passed expanding the jurisdiction of the MTC which
covered the subject matter of the case filed. Did the RTC lose
its jurisdiction to hear and decide the case?
A: No. Where a court acquired jurisdiction over an action, its
jurisdiction continues to the final conclusion of the case.
Such jurisdiction is not affected by new legislation placing
jurisdiction over such dispute in another court or tribunal
unless the statute provides for retroactivity. (People v. CA,
G.R. No. 154557, February 13, 2008)
DETERMINED BY THE ALLEGATIONS OF THE
COMPLAINT OR OTHER INITIATORY PLEADING
How jurisdiction over the subject matter is
determined
While jurisdiction is conferred by law, jurisdiction is
determined by the allegations in the complaint, as well as
by the character of the relief sought.
The allegations in the complaint determine both the
nature of the action and the jurisdiction of the court
(Riano, p. 69, 2019).
It’s a basic rule that jurisdiction over the subject matter is
determined by the allegations in the complaint. It is
determined exclusively by the Constitution and the law,
and cannot be conferred by voluntary act or agreement of
the parties, or acquired through or waived, enlarged or
diminished by their act or omission, nor conferred by the
acquiescence of the court. This matter being legislative in
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CIVIL PROCEDURE REVIEWER
character (Mendoza v. Germino, G.R. No. 165676,
November 22, 2010).
NOTE: In determining whether or not the court has
jurisdiction over the complaint before it, the court should
not inquire into the truth of such allegations (Riano, p. 70,
2019).
Evidentiary facts
Under the current rules, the allegations of the complaint
will be based on ultimate facts, i.e., facts which you must
allege otherwise you will have no cause of action. Under
the May 2020 Amendments, they will not be based on
ultimate facts anymore but evidentiary facts, which needs
to be attached to the complaint.
Criterion of first ascertaining the nature of the
principal action or remedy sought
If it is primarily for the recovery of a sum of money, the
claim is considered capable of pecuniary estimation, and
whether jurisdiction is in the municipal trial courts or in the
regional trial courts would depend on the amount of the
claim (Pajares v. Remarkable Laundry, G.R. No.
212690, February 20, 2017).
a. RTC has jurisdiction
If the value, claim, or demand exceeds P300,000
(outside Metro Manila) or exceeds P400,000
(Metro Manila); or
b. MTC has jurisdiction
If the value, claim, or demand does not exceed
P300,000 (outside Metro Manila) or does not
exceed P400,000 (Metro Manila), the MTC has
jurisdiction.
Where money claim is purely incidental
If the basic issue is something other than the right to
recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief
sought, the SC has considered such actions as cases
where the subject of litigation may not be estimated in
terms of money, and are cognizable exclusively by
Regional Trial Courts (Pajares v. Remarkable Laundry,
G.R. No. 212690, February 20, 2017).
Q: The following are the allegations in the complaint: A
bought a land from B amounting to P5M in cash; that
despite the demands for B to turn over the TCT, the latter
refused to surrender the same; that in the event the TCT
will not be surrendered, A requests that the deed of
absolute sale be rescinded, the P5M and all other
damages amounting to P10M be paid. The assessed
value of the property is P15,000. What court has
jurisdiction?
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A: RTC has jurisdiction. Based on the allegations in the
complaint, the primary motive of the plaintiff is to get the
TCT. It is a case for specific performance and must be
filed before the RTC which has jurisdiction over actions
incapable of pecuniary estimation.
Actions for unlawful detainer
The MTC has exclusive original jurisdiction over unlawful
detainer cases. An action for unlawful detainer is one the
purpose of which is to recover possession of the real
property from one who illegally withholds possession after
the expiration of his right to hold possession under any
contract, express or implied (Riano, p. 119, 2019).
Q: The following are the allegations in the complaint:
defendant B leased the premises owned by the lessor
plaintiff A; rent is payable at P30K monthly; rent period is 2
years; Beginning the 3rd month, defendant did not pay; on
the seventh month, plaintiff sent a demand letter for the
defendant to pay P120k and vacate. A filed an unlawful
detainer case within 1-year period. By that time the arrears
went up to 500k. A asked for P500k. B refused to pay and
claimed that the property was inherited from his
grandmother. What court has jurisdiction?
A: MTC has jurisdiction. Based on the allegations, there is a
demand to pay and vacate. The primary consideration in the
ultimate facts is to recover the possession. The 500k that is
only a consequence of A’s demand to surrender the
premises.
NOTE: If what is filed is a collection suit of 500k, RTC has
jurisdiction because the primary objective is to collect the
amount of P500k.
The action is purely for damages
Regional Trial Courts shall exercise exclusive original
jurisdiction over actions in which the subject of litigation is
incapable of pecuniary estimation; and other cases where
the demand, exclusive of interest, damages, attorney’s fees,
litigation expenses and costs, or value of property in
controversy exceeds P300,000 or P400,000 in Metro Manila
(Section 19, BP 129 as amended by R.A. 7691).
The exclusion of the term "damages of whatever kind" in
determining the jurisdictional amount applies to cases where
the damages are merely incidental to or a consequence of
the main cause of action. However, in cases where the claim
for damages is the main cause of action, or one of the causes
of action, the amount of such claim shall be considered in
determining the jurisdiction of the court (Sante v. Claravall,
G.R. No. 173915, February 22, 2010).
Hence, the provision excluding “damages of whatever kind”
applies only if the damages are incidental to the action.
Q: An action purely for damages was filed. Respondent
prayed that petitioners be held liable to pay moral
damages in the amount of P300,000.00; P50,000.00 as
exemplary damages; P50,000.00 attorney's fees;
P20,000.00 litigation expenses; and costs of suit or for a
total of P420,000.00. Which court has jurisdiction?
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CIVIL PROCEDURE REVIEWER
A: RTC. Add all damages in the computation if the action
is primarily one for damages. Here, the total damages
amounted to P420,000.00, hence it is within the RTC’s
jurisdiction.
Q: If A filed a case for specific performance and the value
of damages is 200k, which court has jurisdiction?
A: The RTC has jurisdiction because damages is just a
consequence of the main cause of action.
Q: If A filed an unlawful detainer case and asked for P1M
in arrears, which court has jurisdiction?
A: MTC has jurisdiction because the main cause of action
is one for recovery of possession of real property. The
amount of damages is merely inconsequential to the main
cause of action.
The defenses and the evidence do not determine
jurisdiction
The settled rule is that jurisdiction is based on the
allegations in the initiatory pleading. Jurisdiction of a court
cannot be made to depend upon the defenses made by a
defendant in his answer or motion to dismiss (Riano, p.
72, 2019; Indophil Textile Mills v. Adviento, G.R. No.
171212, August 14, 2014).
Objections to jurisdiction over the subject matter
to or interest in real property, it requires that the assessed
value of the property, or if there is none, the estimated value
thereof, shall be alleged (Barangay Piapi v. Talip, G.R. No.
138248, September 07, 2005).
Absent any allegation in the complaint of the assessed value
of the property, it cannot be determined which between the
RTC or the Municipal Trial Court had original and exclusive
jurisdiction over respondents' action (Heirs of the Late Sps.
Ramiro vs. Sps. Bacaron, G.R. No. 196874, February 06,
2019).
In a real action, the assessed value of the property, or if there
is none, the estimated value thereof shall be alleged by the
claimant and shall be the basis in computing the fees (Rule
141, Section 7, RoC).
Jurisdiction of courts based on the assessed value
If the assessed value or interest in of the real property:
1. Exceeds P20,000.00 (outside Metro Manila) or
exceeds P50,000.00 (Metro Manila), RTC has
jurisdiction;
2.
Does not exceed P20,000.00 (outside Metro Manila)
or does not exceed P50,000.00 (Metro Manila),
MTC has jurisdiction.
NOTE: Regardless of the assessed value, actions for
forcible entry and unlawful detainer of lands or buildings
are always within the jurisdiction of the MTC (BP 129,
Sec. 19(2)).
GR: The defense of lack of jurisdiction over the subject
matter may be raised at any stage of the proceedings,
even for the first time on appeal. In fact, the court may
motu proprio dismiss a complaint at any time when it
appears from the pleadings or the evidence on record that
lack of jurisdiction exists (Julao v. Sps De Jesus, G.R.
No. 176020, September 29, 2014).
When the assessed value of the property was not
alleged in the complaint but Declaration of Real
Property was attached thereto
Even if the parties did not raise the issue of jurisdiction,
the reviewing court, on appeal, is not precluded from
ruling that the lower court had no jurisdiction over the case
(Riano, p. 81, 2019).
XPN: A rigid application of this rule may result in defeating
substantial justice or in prejudice to a party’s substantial
right.
XPN: Doctrine of Estoppel by Laches
The Supreme Court applied the Doctrine of Estoppel by
Laches in the case of Tijam v. Sibonghanoy (G.R. No. L21450). Here, the SC barred a belated objection to
jurisdiction that was raised by a party only when an
adverse decision was rendered by the lower court against
it and because it raised the issue only after almost 15
years and after seeking affirmative relief from the court
and actively participating in all stages of the proceedings.
Failure to allege the assessed value in the complaint
What determines jurisdiction is the allegations in the
complaint and the reliefs prayed for. If the complaint is for
reconveyance of a parcel of land, which involves the title
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GR: Generally, the court should only look into the facts
alleged in the complaint to determine whether a suit is within
its jurisdiction.
The SC considered the facts contained in the Declaration of
Real Property attached to the complaint in determining
whether the RTC had jurisdiction over the petitioner’s case
(Tumpag v. Tumpag, G.R. No. 199133, September 29,
2014).
When the fair market value and not the assessed
value was alleged
The court can still determine its jurisdiction even if only
the market value is specified. The Rule requires that
'the assessed value of the property, or if there is none, the
estimated value thereof, shall be alleged by the
claimant.’ The court considered the market value as the
estimated value of the land (Barangay Piapi v. Talip,
G.R. No. 138248, September 07, 2005).
Doctrine of Judicial Stability
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CIVIL PROCEDURE REVIEWER
This doctrine is one which precludes the court from
interfering by injunction with the regular orders of a coequal court.
NOTE: Based on the ruling of Sps. Aboitiz v. Sps Po, the
RTC cannot annul the judgment rendered by another RTC
because they are courts of co-equal jurisdiction. If a party
wants to annul the decision, a petition for annulment under
Rule 47 should be filed and the only court that can annul it is
the CA.
JURISDICTION OVER THE PARTIES
Jurisdiction over the subject matter v. Jurisdiction
over the parties
JURISDICTION OVER
THE SUBJECT MATTER
Conferred upon by law
and determined by the
allegations
in
the
complaint
and
the
character of the relief
sought.
JURISDICTION OVER
THE PARTIES
Acquired by the filing of
the petition in case of the
plaintiff, or by valid service
of summons or voluntary
submission to the court’s
authority in case of the
defendant.
Cannot be conferred by
the agreement of the
parties, by contract, or by
the parties’ silence or
acquiescence.
It can be subject to the will
of the parties.
Can raise it for the first
time on appeal.
Cannot raise it for the first
time on appeal.
Not waivable.
Waivable.
Jurisdiction over the person
Jurisdiction over the parties refers to the power of the court
to make decisions that are binding on persons. It is the legal
power of the court to render a personal judgment against a
party to an action or proceeding (Riano, p. 85, 2019).
How jurisdiction over the parties is acquired
1. Jurisdiction over the plaintiff
It is acquired as soon as he files his
complaint or petition because by the mere
filing of the complaint, the plaintiff, in a civil
action, voluntarily submits himself to the
jurisdiction of the court.
2.
Jurisdiction over the defendant
It is acquired either by his voluntary
appearance in court and his submission to
its authority or by service of summons
(Riano, p. 86, 2019).
Voluntary appearance of the defendant
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GR: 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, September 05,
2012).
XPN: The defendant’s voluntary appearance in the action
shall be equivalent to service of summons.
NOTE: The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance (Rule
14, Section 23, RoC).
EXAMPLE: When Chandumal filed an Urgent Motion to Set
Aside Order of Default and to Admit Attached Answer, she
effectively submitted her person to the jurisdiction of the trial
court as the filing of a pleading where one seeks an
affirmative relief is equivalent to service of summons and
vests the trial court with jurisdiction over the defendant s
person (Planters Development Bank v. Chandumal, G.R.
No. 195619, September 05, 2012).
Effect of death of defendant before and after
summons
Q: A filed a case against B. Summons was served upon B.
Then B died. Did the court acquire jurisdiction over B?
A: Yes. There will be substitution of parties.
NOTE: If at the time the complaint was filed, B was already
dead, a motion for substitution cannot be filed anymore.
Substitution is proper only when the defendant died during
the pendency of the case. The proper remedy is to amend
the complaint and sue the executor or administrator of the
estate.
EXAMPLE: The trial court did not acquire jurisdiction over
the person of Manuel Toledo. Jurisdiction over the person of
a defendant is acquired through a valid service of summons.
There was no valid service of summons to Manuel because
he was already dead even before the filing of the complaint
against him and his wife before the trial court (Boston
Equity v. CA, G.R. No. 173946, June 19, 2013).
When jurisdiction over the person of the defendant is
required
Action in personam – is an action against a person on the
basis of his personal liability.
Action in rem – is an action against the thing itself, instead
of against the person.
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.
In an action in personam, jurisdiction over the person of
the defendant is necessary for the court to validly try and
decide the case. On the other hand, a proceeding in rem
or quasi in rem, jurisdiction over the person of the
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CIVIL PROCEDURE REVIEWER
defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the
res (Riano, p. 89, 2019).
NOTE: Summons must be served upon the defendant,
not for the purpose of vesting jurisdiction, but for satisfying
the due process requirements.
Q: P is a Muslim. D is a non-Muslim. The subject property
is located in Mindanao. Does the Sharia Court have
jurisdiction?
A: No. Sharia courts will have jurisdiction only when the
parties to the case are both Muslims. If one party is not a
Muslim, the action must be filed before the regular courts
(Municipality of Tangkal v. Balindong, G.R. No.
193340, January 11, 2017).
Jurisdiction v. Exercise of jurisdiction
JURISDICTION
Authority of the court
to hear and decide a
case
EXERCISE OF
JURISDICTION
Where there is jurisdiction over
the person and subject matter,
the resolution of all other
questions arising in the case is
but an exercise of jurisdiction.
NOTE: "Jurisdiction" should be distinguished from the
"exercise of jurisdiction." Jurisdiction refers to the
authority to decide a case, not the orders or the decision
rendered therein.
Accordingly, where a court has jurisdiction over the
person and the subject matter, the decision on all
questions arising from the case is but an exercise of such
jurisdiction. Any error that the court may commit in the
exercise of its jurisdiction is merely an error of judgment
which does not affect its authority to decide the case,
much less divest the court of the jurisdiction over the case
(Platinum Tours v. Panlilio, G.R. No. 133365,
September 16, 2003).
When the court, although
vested with jurisdiction,
acts in excess of its
jurisdiction or with grave
abuse
of
discretion
lack
of
evidence leading to an
erroneous judgment.
JURISDICTION
Refers to the authority of
the court to hear and
determine a case.
VENUE
Refers to the place where
the case is to be heard or
tried.
A matter of substantive
law
A matter of procedural
law
Cannot be waived by the
parties
May be waived by the
parties
Fixed by law and cannot
be conferred by the
parties.
May be conferred by the
act or agreement of the
parties.
The court may dismiss
motu proprio.
The court may not
dismiss motu proprio the
case in case of improper
venue.
Jurisdiction v. Venue
May be raised at any
stage of the proceedings
since it is conferred by
law.
Objection to an improper
venue must be raised in
the answer.
NOTE: Venue in civil actions arising from libel may be
waived since they do not involve a question of jurisdiction.
In criminal actions, it is fundamental that venue is
jurisdictional, it being an essential element of jurisdiction
(Nocum v. Tan, G.R. No. 145022, September 23, 2005).
Q: A filed a case against B in the RTC of Muntinlupa. A lives
in Manila, while B lives in Makati. This is a personal action.
Is the venue proper? What is the remedy of B?
ERROR OF JUDGMENT
A: No. The venue in personal actions is where the plaintiff or
any of the principal plaintiff resides, or where the defendant
or any of the principal defendant resides, at the election of
the plaintiff. Under the May 2020 amendments, B should
raise it as a matter of affirmative defense in the answer.
Presupposes that the
court is vested with
jurisdiction
over
the
subject matter of the
action.
The rules on venue are intended to provide convenience to
the parties, rather than restrict their access to the courts. It
simply arranges for the convenient and effective transaction
of business in the courts and do not relate to their power,
authority, or jurisdiction over the subject matter of the action
(Cabrera v. PSA, G.R. No. 241369, June 3, 2019).
Error of jurisdiction v. Error of judgment
ERROR OF
JURISDICTION
Occurs when the court
exercises a jurisdiction not
conferred upon it by law.
amounting to
jurisdiction.
In
the
process
of
exercising
such
jurisdiction, it committed
mistakes
in
the
appreciation of facts and
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JURISDICTION OF SPECIFIC COURTS
JURISDICITION OF THE SUPREME COURT
Original jurisdiction
1. Cases affecting
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CIVIL PROCEDURE REVIEWER
a. Ambassador;
b. Other public ministers, and
c. Consuls
2. Petitions for
a. Certiorari
b. Mandamus
c. Prohibition
d. Habeas corpus, and
e. Quo Warranto [Sec.
Constitution]
Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions.”
Concurrent original jurisdiction
1.
5(1),
Art.
VIII,
Parties seeking to question the resolutions of the Office of
the Ombudsman in criminal cases or non-administrative
cases, may file an original action for certiorari with the SC,
not with the CA, when it is believed that the Ombudsman
acted with grave abuse of discretion (Ombudsman v.
Heirs of Margarita Vda. De Ventura, G.R. No. 151800,
citing Estrada v. Desierto, G. R. No. 156160).
Exclusive original jurisdiction
1. Petitions for certiorari, prohibition and mandamus
against:
a. Court of Appeals (Sec. 17, R.A. 296);
b. Commission on Elections (Sec 7, Art. IX,
Constitution);
c. Commission on Audit (Sec. 7, Art. IX,
Constitution);
d. Sandiganbayan (P.D. 1606 as amended); and
e. Court of Tax Appeals (en banc)
NOTE: Although there is concurrent jurisdiction
as the Constitution grants this to the SC, SC
A.M. No. 07-7-12 issued on 4 December 2007
provides that if the petition involves an act or
omission of a Quasi-Judicial Agency, the
petition shall only be cognizable by the CA and
must be filed there.
b.
2.
2. Disciplinary proceedings against members of the Bar
and court personnel (Rule 56, Section 1, RoC).
The certiorari jurisdiction of the SC has been rigorously
streamlined, such that Rule 65 only admits cases based
on the specific grounds provided therein. The Rule
applies if there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law. The
independent action for certiorari will lie only if grave abuse
of discretion is alleged and proven to exist (Lagua v. CA,
G.R. No. 173390).
In Araullo v. Aquino III (G.R. No. 209287), it was held that
petitions for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and
executive officials. “With respect to the Court, however,
the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial
functions but also to set right, undo and restrain any act
of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the
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UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
With CA
a. Petitions for certiorari, prohibition, and mandamus
against:
i. RTCs (B.P. Blg. 129, Sec. 21, par (1));
ii. Civil Service Commission (R.A. 7902);
iii. Central Board of Assessment Appeals (P.D.
464; B.P. 129; R.A. 7902)
iv. NLRC (St. Martin Funeral Homes v. NLRC,
G.R. No. 130866 (1998); R.A. 7902)
v. Other Quasi-Judicial Agencies (B.P. 129;
R.A. 7902; Heirs of Hinog v. Melicor, G.R.
No. 140954)
Petitions for a Writ of Kalikasan (Rules 7, Section
3, AM No. 09-6-8-SC)
With CA and RTC
a. Petitions for certiorari, prohibition and mandamus
against lower courts and bodies;
b. Petitions for Quo Warranto; and
c. Petitions for Writs of Habeas Corpus
NOTE: This jurisdiction is subject to the doctrine of
hierarchy of courts (Section 9(1), 21(1), B.P. 129).
3.
With RTC in cases affecting ambassadors, public
ministers and consuls (B.P. 129, Section 21(2)).
4.
With CA, RTC and Sandiganbayan
a. Petitions for a Writ of Amparo (Section 3, Rule
on the Writ of Amparo) and
b. Petitions for a Writ of Habeas Data. (Section 3,
Rule on the Writ of Habeas Data)
Appellate jurisdiction
The SC shall have the power to review, revise, reverse,
modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of
lower courts in:
1. All cases in which the constitutionality or validity
of any treaty, international or executive
agreement,
law,
presidential
decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
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CIVIL PROCEDURE REVIEWER
2. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto.
3. All cases in which the jurisdiction of any lower
court is in issue.
4. All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
5. All cases in which only an error or question of law
is involved (Article VIII, Section 5(2),
Constitution).
By way of petition for review on certiorari (Appeal by
Certiorari under Rule 45) against the following:
1. CA;
2. Sandiganbayan;
3. RTC
a. Pure questions of law (Sec. 1, Rule 45) and
b. Cases falling under Sec. 5, Art. VIII,
Constitution (see above)
4. CTA in its decisions rendered en banc;
5. MetC, MTC, MCTC in the exercise of their delegated
jurisdiction, where the decision, had it been
rendered by RTC, would be appealable directly to
the SC (Sec. 34, B.P. 129, as amended)
9.
The CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would
justify a different conclusion;
10. The findings of the CA are beyond the issues of the
case; or
11. Such findings are contrary to the admissions of both
parties (Josefa v. Zhandong, G.R. No. 150903).
JURISDICTION OF THE COURT OF APPEALS
Exclusive original jurisdiction
Actions for annulment of judgments of the RTC. (BP 129,
Section 9(2); Rule 47, Section 1)
Concurrent original jurisdiction
1. With SC
a. Petitions for certiorari, prohibition, and mandamus
against:
i. RTC;
ii. Civil Service Commission;
iii. Central Board of Assessment Appeals;
iv. Other quasi-judicial agencies mentioned in
Rule 43; and
v. NLRC (St. Martin Funeral Homes v.
NLRC, G.R. No. 130866)
Only pure questions of law are involved when no evidentiary
matters are to be evaluated by the SC. If the only issue is
whether or not the conclusions of the trial court are in
consonance with law and jurisprudence, then the issue is a
pure question of law (Urbano v. Chavez, G.R. No. 87977).
NOTE: The SC has held that appeals from quasi-judicial
agencies – even only on a question of law alone – may be
brought to the CA, via Rule 43 of the Rules of Court. This
constitutes an exception to the general rule that appeals on
pure questions of law are brought to the SC (Santos v.
Committee on Claims Settlement, G.R. No. 158071).
The SC may resolve factual issues in certain exceptional
circumstances:
1. The conclusion is grounded on speculations,
surmises or conjectures;
2. The inference is manifestly mistaken, absurd or
impossible;
3. There is grave abuse of discretion;
4. The judgment is based on a misapprehension of
facts;
5. The findings of fact are conflicting;
6. There is no citation of specific evidence on which
the factual findings are based;
7. The finding of absence of facts is contradicted by
the presence of evidence on record;
8. The findings of the CA are contrary to those of the
trial court;
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NOTE: Although there is concurrent jurisdiction as
the 1987 Constitution grants this to the SC, SC A.M.
No. 07-7-12 issued on 4 December 2007 provides
that if the petition involves an act or omission of a
Quasi-Judicial Agency, the petition shall only be
cognizable by the CA.
b.
Petitions for Writ of Kalikasan (Section 3, Rules of
Procedure for Environmental Cases)
2.
With SC and RTC
a. Petitions for certiorari, prohibition and mandamus
against lower courts and bodies;
b. Petitions for Quo Warranto; and
c. Petitions for writs of habeas corpus
3.
With SC, RTC and Sandiganbayan
a. Petitions for a Writ of Amparo (Section 3, Rule
on the Writ of Amparo); and
b. Petitions for Habeas Data (Section 3, Rule on
the Writ of Habeas Data)
Exclusive appellate jurisdiction
1. By Ordinary Appeal
a. From judgments of RTC and Family Courts (Sec.
9(3), B.P. 129, as amended; Sec. 14, R.A.
8369); and
b. Over decisions of the MTCs in cadastral or land
registration cases pursuant to its delegated
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CIVIL PROCEDURE REVIEWER
jurisdiction (Sec. 34, B.P. 129, as amended by
R.A. 7691)
2. By Petition for Review
a. From judgments of the RTC rendered in its
appellate jurisdiction (B.P. 129, as amended,
Section 22; Rule 42; B.P. 129, Section 9)
b. From decisions, resolutions, orders or awards of
the Civil Service Commission and other bodies
mentioned in Rule 43 (B.P. 129, Sec. 9(3)); and
NOTE: The enumeration of quasi-judicial
agencies under Section 1, Rule 43 is not
exclusive (Wong v. Wong, G.R. No. 180364
(2014), quoting Cayao-Lasam v. Sps.
Ramolete, G.R. No. 159132).
c.
From decisions of the Office of the Ombudsman
in administrative disciplinary cases; and
b.
d. Other bodies mentioned in Rule 43 (BP Blg. 129,
Sec. 9, par. (3)).
c.
d.
JURISDICTION OF SANDIGANBAYAN
Exclusive original jurisdiction
1. Violations of R.A. 3019 or the Anti-Graft and Corrupt
Practices Act;
2. Violations of R.A. 1379 or An Act Declaring Forfeiture
in Favor of the State Any Property Found to Have
Been Unlawfully Acquired by Any Public Officer or
Employee and Providing for the Proceedings
Therefor;
3. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC),
where one or more of the principal accused are
occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at
the time of the commission of the offense.
a. Officials of the executive branch occupying the
positions of regional director and higher,
otherwise classified as Grade 27 and higher, of
the Compensation and Position Classification Act
of 1989 (R.A. 6758), specifically including:
i. Provincial governors, vice-governors,
members
of
the
sangguniang
panlalawigan, and provincial treasurers,
assessors,
engineers,
and
other
provincial department heads
ii. City mayors, vice-mayors, members of
the sangguniang panlungsod, city
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UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
e.
4.
5.
6.
treasurers, assessors, engineers, and
other city department heads
iii. Officials of the diplomatic service
occupying the position of consul and higher
iv. Philippine army and air force colonels,
naval captains, and all officers of higher
rank;
v. Officers of the Philippine National Police
while occupying the position of provincial
director and those holding the rank of
senior superintendent and higher
vi. City and provincial prosecutors and their
assistants, and officials and prosecutors in
the Office of the Ombudsman and special
prosecutor;
vii. Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state universities
or educational institutions or foundations
Members of Congress and officials thereto
classified as Grade 27 and up under R.A. 6758
Members of the Judiciary without prejudice to the
provisions of the Constitution
Chairmen and Members of the Constitutional
Commissions without prejudice to the provisions of
the Constitution
All other national and local officials classified as
Grade 27 and higher under R.A. 6758.
Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees mentioned in subsection a. of section 4 (as
amended) in relation to their office;
Civil and criminal cases filed pursuant to and in
connection with E.O. Nos. 1, 2, 14-A; and
Petitions for mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction, and petitions
of similar nature, including quo warranto, arising or that
may arise in cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986
(Section 4, P.D. 1606, as amended by R.A. 10660).
NOTE: The RTC shall have exclusive original
jurisdiction where the information:
1. Does not allege any damage to the government
or any bribery; or
2. Alleges damage to the government or bribery
arising from the same or closely related
transactions or acts in an amount not exceeding
P1 million (Sec. 4, P.D. 1606, as amended by
R.A. 10660).
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CIVIL PROCEDURE REVIEWER
Subject to rules promulgated by the SC, the cases falling
under the jurisdiction of the RTC shall be tried in a judicial
region other than where the official holds office. (Section
4, P.D. 1606, as amended by R.A. 10660)
Exclusive original jurisdiction shall be vested in the
proper RTC, MeTC, MTC, and MCTC, as the case may
be, where none of the accused are occupying positions
corresponding to Salary Grade 27 or higher, or military
and PNP officers mentioned above (Section 4, P.D.
1606, as amended by R.A. 10660).
Exclusive appellate jurisdiction
The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction as
herein provided (Section 4, P.D. 1606, as amended by
R.A. 10660).
Exclusive original jurisdiction
The Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance of the writs of
mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid
of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise
in cases filed or which may be filed under E.O. 1, 2, 14
and 14-A, issued in 1986: Provided, That the jurisdiction
over these petitions shall not be exclusive of the SC (Sec.
4, P.D. 1606, as amended by R.A. 10660).
Concurrent Original Jurisdiction
The Sandiganbayan has concurrent original jurisdiction
with the SC, CA, and RTC for petitions for writs of amparo
(Sec. 3, Rule on the Writ of Amparo) and habeas data
(Sec. 3, Rule on the Writ of Habeas Data).
JURISDICTION OF REGIONAL TRIAL COURTS
Exclusive original jurisdiction
1. All civil actions in which the subject of the litigation is
incapable of pecuniary estimation (Sec. 19(1), B.P.
129, as amended by R.A. 7691).
Test (principal nature of an action): If it is primarily for
the recovery of a sum of money, the claim is considered
capable of pecuniary estimation. On the other hand,
where the basic issue is something other than the right to
recover a sum of money, and the money claim is purely
incidental to, or a consequence of, the principal relief
sought, such actions are cases where the subject of the
litigation is incapable of pecuniary estimation (Heirs of
Padilla v. Magdua, G.R. No. 176858 (2010), quoting
Singson v. Isabela Sawmill, G.R. No. L-27343).
An action to nullify a Deed of Assignment and
Conveyance is not one involving a subject matter
incapable of pecuniary estimation if the plaintiff also
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UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
seeks to the transfer of possession and control of
properties
In Home Guaranty v. R-II Builders (G.R. No. 192649), an
action that sought the nullification of a Deed of
Assignment and Conveyance was characterized by the
respondent on an MR before the SC as one involving a
subject matter incapable of pecuniary estimation. The SC
disagreed and held that since the action was not solely for
the annulment of the Deed of Assignment and
Conveyance – indeed, the respondent consistently
sought the transfer of possession and control of
properties – following the its ruling in Ruby Shelter
Builders and Realty Development Corp. v. Formaran III,
G.R. No. 175914 (2009), the subject of the action was not
incapable of pecuniary estimation.
However, if the principal nature of an action to cancel a
contract to sell, where the defendant has already taken
possession of the property, involves a determination on
whether a suspensive condition has been fulfilled – then
the subject matter involved is one that is incapable of
pecuniary estimation.
In Olivarez Realty v. Castillo (G.R. No. 196251), the action
instituted in the trial court was one for the cancellation of a
contract to sell, and prior to the institution of the action the
defendant had already proceeded to occupy the property
involved. In this instance, the SC held that the action involved
a subject matter that was incapable of pecuniary estimation.
The difference in the ruling of the SC here and in Home
Guaranty lies in that fact that in Olivarez Realty, what the
plaintiff had principally sought was a determination that a
suspensive condition for the perfection of the contract had
not been fulfilled: “the trial court principally determined
whether Olivarez Realty Corporation failed to pay
installments of the property’s purchase price as the parties
agreed upon in the deed of conditional sale. The principal
nature of Castillo’s action, therefore, is incapable of
pecuniary estimation.”
In Heirs of Bautista v. Lindo (G.R. No. 208232), it states that
where an action to redeem a land subject of a free patent
was characterized by the SC as one whose subject matter
was incapable of pecuniary estimation since the
reacquisition of the land was merely incidental to and an
offshoot of the exercise of the right to redeem the land,
pursuant to Sec. 119 of CA 141.
An expropriation suit is incapable of pecuniary estimation
(Barangay San Roque v. Heirs of Francisco Pastor, G.R.
No. 138896).
2. Civil actions involving title to, or possession of real
property, or any interest therein, where assessed
value exceeds P20,000 outside Metro Manila, or
exceeds P50,000 in Metro Manila [Sec. 19(2), B.P.
129, as amended by R.A. 7691]
XPN: Forcible entry and unlawful detainer cases [Sec.
33(2), B.P. 129, as amended by R.A. 7691]
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CIVIL PROCEDURE REVIEWER
An action "involving title to real property" means that the
plaintiff's cause of action is based on a claim that he owns
such property or that he has the legal rights to have
exclusive control, possession, enjoyment, or disposition
of the same. Title is the "legal link between (1) a person
who owns property and (2) the property itself” (Heirs of
Sebe v. Heirs of Sevilla, G.R. No. 174497).
b.
3. If the amount involved exceeds P300,000 outside
Metro Manila or exceeds P400,000 in Metro Manila in
the following cases (B.P. 129, as amended by R.A.
7691):
a. Actions in admiralty and maritime jurisdiction,
where the amount refers to demand or claim
[Sec. 19(3)];
b. Matters of probate (testate or intestate), where
the amount refers to gross value of estate [Sec.
19(4)]; and
c. In all other cases where the amount refers to the
demand, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation
expenses, and costs [Sec. 19(8)].
4. All actions involving the contract of marriage and
family relations [Sec. 19(5), B.P. 129, as amended
by R.A. 7691], and all civil actions and special
proceedings falling within exclusive original
jurisdiction of Juvenile and Domestic Relations Court
[Sec. 19(7), B.P. 129, as amended by R.A. 7691]
NOTE: This jurisdiction is deemed modified by Sec. 5,
R.A. 8369, the law establishing the Family Courts.
However, in areas where there are no Family Courts, the
cases within their jurisdiction shall be adjudicated by the
RTC [Sec. 17, R.A. 8369].
c.
d.
8.
7. Intra-corporate controversies
a. Cases involving devises or schemes employed
by or any acts, of board of directors, business
associates, its officers or partnership, amounting
to fraud and misrepresentation which may be
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UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
Petitions for declaratory relief [Sec. 1, Rule 63].
Concurrent original jurisdiction
1. With SC
In cases affecting ambassadors, public ministers and
consuls [Sec. 21(2), B.P. 129; Sec. 5(5), Art. VIII,
Constitution];
2.
With SC and CA
a. Petitions for certiorari, prohibition and mandamus
against lower courts and bodies
b. Petitions for Quo Warranto;
c. Petitions for Writs of Habeas Corpus [Sec. 9(1),
21(2), B.P. 129; Sec. 5(5), Art. VIII, Constitution].
3.
With SC, CA and Sandiganbayan
In Petitions for Writs of Amparo [Sec. 3, Rule on the
Writ of Amparo] and Habeas Data [Sec. 3, Rule on the
Writ of Habeas Data].
5. All civil actions and special proceedings falling within
exclusive original jurisdiction of the Court of Agrarian
Reform [Sec. 19(7), B.P. 129, as amended by R.A.
7691].
6. All cases not within the exclusive jurisdiction of any
court, tribunal, person, or body exercising judicial or
quasi-judicial functions [Sec. 19(6), B.P. 129, as
amended by R.A. 7691]. This jurisdiction is often
described as the ‘general’ jurisdiction of the RTC
making it a court of ‘general jurisdiction.’
detrimental to interest of public and/or of
stockholders, partners, members of associations or
organizations registered with SEC;
Controversies arising out of intra-corporate or
partnership relations, between and among
stockholders, members or associates; between any
or all of them and corporation, partnership or
association of which they are stockholders,
members or associates, respectively; and between
such corporation, partnership or association and the
state insofar as it concerns their individual franchise
or right to exist as such entity;
Controversies in election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations; and
Petitions of corporations, partnerships or
associations to be declared in state of suspension
of payments in cases where corporation,
partnership of association possesses sufficient
property to cover all its debts but foresees
impossibility of meeting them when they
respectively fall due or in cases where corporation,
partnership or association has no sufficient assets
to cover its liabilities, but is under management of a
Rehabilitation Receiver or Management Committee
[Sec. 52, Securities and Regulations Code].
Appellate jurisdiction
Appellate jurisdiction over cases decided by lower courts
in their respective territorial jurisdictions, except those
made in the exercise of delegated jurisdiction, which are
appealable in the same manner as decisions of the RTC
[Sec. 34, B.P. 129, as amended].
Special jurisdiction
SC may designate certain branches of RTC to try
exclusively criminal cases, juvenile and domestic
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CIVIL PROCEDURE REVIEWER
relations cases, agrarian cases, urban land reform cases
not falling within the jurisdiction of any quasi-judicial body
and other special cases in the interest of justice [Sec. 23,
B.P. 129].
JURISDICITION OF FAMILY COURTS
Criminal cases where one or more accused is below 18
but not less than 9 years old or where one or more
victims was a minor at the time of the commission of
offense;
2. Petitions for guardianship, custody of children and
habeas corpus in relation to children;
3. Petitions for adoption of children and revocation thereof;
4. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
property relations of husband and wife or those living
together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains;
5. Petitions for support and/or acknowledgment;
6. Summary judicial proceedings brought under the
provisions of Family Code;
7. Petitions for:
a. Declaration of status of children as abandoned,
dependent or neglected children
b. Voluntary or involuntary commitment of children
c. Suspension, termination or restoration of
parental authority and
d. Other cases cognizable under P.D. 603, E.O.
56, s. 1986, and other related laws
8. Petitions for constitution of family home
9. Cases against minors cognizable under Dangerous
Drugs Act, as amended (now R.A. 9165)
10. Violations of R.A. 7610, or the “Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act” and
11. Cases of domestic violence against Women and
Children [Sec. 5, R.A. 8369].
1.
JURISDICITION OF THE METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT
TRIAL COURTS
Exclusive original jurisdiction
1. Where the value of personal property, estate, or amount
of demand does not exceed P300,000 outside Metro
Manila or does not exceed P400,000 in Metro Manila,
exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, in the
following cases:
a. Civil actions
b. Probate proceedings (testate or intestate)
c. Provisional remedies in proper cases [Sec.
33(1), B.P. 129, as amended by R.A. 7691].
2.
NOTE: When defendant raises questions of ownership
in his pleadings and the question of possession cannot
be resolved without deciding issue of ownership, the
latter issue shall be resolved only to determine the
former issue [Sec. 33(2), B.P. 129, as amended by
R.A. 7691].
3.
All civil actions involving title to, or possession of, real
property, or any interest therein where assessed value
of property or interest therein does not exceed P20,000
outside Metro Manila, or does not exceed P50,000 in
Metro Manila [Sec. 33(3), B.P. 129, as amended by
R.A. 7691].
4.
Inclusion and exclusion of voters [Sec. 49, Omnibus
Election Code].
Special jurisdiction
Special jurisdiction over petition for writ of habeas corpus OR
application for bail in criminal cases in the absence of all RTC
judges in the province or city [Sec. 35, B.P. 129].
Delegated jurisdiction
Delegated jurisdiction of 1st level courts assigned by SC to
hear and decide cadastral and land registration cases
covering
1. Lots where there is no controversy or opposition;
2. Contested lots, the value of which does not exceed
P100,000. the value is to be ascertained:
a. By the claimant’s affidavit
b. By agreement of the respective claimants, if
there are more than one; or
c. From corresponding tax declaration of the real
property
MTC decisions in cadastral and land registration cases are
appealable in the same manner as RTC decisions [Sec. 34,
B.P. 129, as amended by R.A. 7691].
1st level courts
1. Metropolitan Trial Court – in each metropolitan area
established by law [Sec. 25, B.P. 129], particularly
Metro Manila [Sec. 27, B.P. 129].
2.
Municipal Trial Courts in Cities – In every city not part of
a metropolitan area [Sec. 29, B.P. 129].
3.
Municipal Circuit Trial Court – in each circuit comprising
such cities and municipalities grouped together pursuant
to law [Sec. 25, B.P. 129].
4. Municipal Trial Courts – in municipalities not
comprised within a metropolitan area and a municipal
circuit [Sec. 30, B.P. 129].
Forcible entry and unlawful detainer
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CIVIL PROCEDURE REVIEWER
a.
b.
c.
d.
e.
JURISDICITION OF THE SHARI’A COURTS
Exclusive original jurisdiction of Shari’a District
Courts
1. All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under the Code of
Muslim Personal Laws;
2. All cases involving disposition, distribution and
settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration of
appointment administrators or executors regardless
of the nature or aggregate value of the property;
3. Petitions for the declaration of absence and death for
the cancellation and correction of entries in the
Muslim Registries;
4. All actions arising from the customary contracts in
which the parties are Muslims, if they have not
specified which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus and all other auxiliary writs
and processes in aid of its appellate jurisdiction. [Art.
143(1), P.D. 1083]
Concurrent jurisdiction of Shari’a District Courts
1. Petitions of Muslim for the constitution of the family
home, change of name and commitment of an insane
person to an asylum
2. All other personal and legal actions not mentioned in
par. (d) of the immediately preceding topic, wherein
the parties involved are Muslims
Except those for forcible entry and unlawful detainer,
which shall fall under the exclusive jurisdiction of the
Municipal Circuit Court (now MTC under B.P. 129, as
amended by R.A. 7691]
3. All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims. [Art. 143(2),
P.D. 1083]
NOTE: Concurrent with existing civil courts.
Appellate jurisdiction of Shari’a District Courts
Over all cases tried in Shari’a Circuit Courts within their
territorial jurisdiction [Art. 144, P.D. 1083].
Exclusive original jurisdiction of Shari’a Circuit
Courts
1. All cases involving offenses defined and punished under
P.D. 1083 or a Decree to ordain and promulgate a code
recognizing the system of Filipino Muslim Laws,
codifying Muslim Personal Laws, and providing for its
administration and for other purposes;
2. All civil actions and proceedings between parties who
are Muslims or have been married in accordance with
Article 13, P.D. 1083 involving disputes relating to:
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UNIVERSITY OF SANTO TOMAS | FACULTY OF CIVIL LAW
3.
Marriage;
Divorce recognized under P.D. 1083;
Betrothal or breach of contract to marry;
Customary dowry (mahr);
Disposition and distribution of property upon
divorce;
f. Maintenance and support, and consolatory gifts
(mut’a); and
g. Restitution of marital rights
All cases involving disputes relative to communal
properties (Article 155, P.D. 1083).
The Shari’a District Court or the Shari’a Circuit Court shall
constitute an Agama Arbitration Council (Art. 160, P.D.
1083) in cases of divorce by talaq and tafwid (Art. 161, P.D.
1083) and subsequent marriages (Art. 162, P.D. 1083). The
Shari’a Circuit Court may also constitute a council to settle
amicably cases involving offenses against customary law
which can be settled without formal trial (Art. 163, P.D.
1083).
JURISDICITION OVER CASES BY THE REVISED
RULES OF PROCEDURE FOR SMALL CLAIMS
CASE, THE REVISED RULES ON SUMMARY
PROCEDURE, AND BARANGAY CONCILIATION
Cases covered by the Revised Rules of Procedure for
Small Claims Cases
The Revised Rules shall govern the procedure in actions
before the MeTCs, MTCCs, MTCs and MCTCs for payment
of money where the value of the claim does not exceed PHP
200,000 exclusive of interest and costs (Sec. 2, A.M. No. 088-7-SC, February 1, 2016)
NOTE: The limit has been raised to PHP 300,000, to take
effect on August 1, 2018 (A.M. No. 08-8-7-SC, July 10,
2018).
However, this was superseded in a later resolution,
amending the jurisdictional amount of these courts under
Republic Act No. 7691 to PHP 400,000 for the MeTCs and
PHP 300,000 for the MTCCs, MTCs, and MCTCs, exclusive
of interest and costs, to take effect on April 1, 2019 (SC
Resolution, February 26, 2019).
Applicability
All actions which are purely civil in nature, where the claim
or relief prayed for by the plaintiff is solely for payment or
reimbursement of sum of money.
The claim or demand may be:
1. For money owed under a contract of lease, loan,
services, sale, or mortgage;
2. For liquidated damages arising from contracts; or
3. The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
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Sec. 417 of the LGC (Sec. 2, A.M. No. 08-8-7SC, February 1, 2016).
Cases covered by the Rules on Summary Procedure
1. All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid
rentals sought to be recovered. However, the
Attorney’s fees awarded shall not exceed PHP
20,000.
2. All other cases, except probate proceedings where
the total amount of the plaintiff‘s claim does not
exceed PHP 100,000 (outside Metro Manila) or PHP
200,000 (in Metro Manila), exclusive of interest and
costs (Sec. 1, Revised Rule on Summary
Procedure, as amended by A.M. No. 02-11-09-SC).
Cases covered by Barangay Conciliation
GR: The Lupon of each barangay shall have the authority
to bring together the parties actually residing in the same
municipality or city for amicable settlement of all disputes.
XPNs:
1. Where one party is the government or any subdivision
or instrumentality thereof;
2. Where one party is a public officer or employee, and
the dispute relates to the performance of his official
functions;
3. Offenses punishable by imprisonment exceeding one
(1) year or a fine exceeding P5,000;
4. Offenses where there is no private offended party;
5. Where the dispute involves real properties located in
different cities or municipalities unless the parties
thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
6. Disputes involving parties who actually reside in
barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
7. Such other classes of disputes which the President
may determine in the interest of justice or upon the
recommendation of the Secretary of Justice (Sec.
408, LGC);
8. Any complaint by or against corporations, partnerships,
or juridical entities, since only individuals shall be parties
to barangay conciliation proceedings either as
complainants or respondents (Section 1, Rule VI,
Katarungang Pambarangay Rules; also see SC
Administrative Circular No. 14-93);
9. Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued, specifically:
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a. A criminal case where the accused is under
police custody or detention
b. A petition for habeas corpus by a person
illegally detained or deprived of his liberty or
one acting in his behalf
c. Actions coupled with provisional remedies,
such as preliminary injunction, attachment,
replevin and support pendente lite
d. Where the action may be barred by the Statute
of Limitations
10. Labor disputes or controversies arising from employeremployee relationship;
11. Where the dispute arises from the CARL; or
12. Actions to annul judgment upon a compromise which
may be directly filed in court (Supreme Court
Administrative Circular No. 14-93).
NOTE: Barangay conciliation is a condition precedent for
filing a case. The failure to comply with a condition precedent
may be raised as an affirmative defense in an answer under
Rule 8, Section 12.
PAYMENT OF DOCKET FEES
The rule in jurisdiction is that when an action is filed, the filing
must be accompanied by the payment of the requisite docket
and filing fees.
The fees must be paid because the court acquires
jurisdiction over the case only upon payment of the
prescribed fees (Manchester v. CA, G.R. No. 75919, May
7, 1987).
Payment of the full amount of the docket fees is mandatory
and jurisdictional. When the complaint is filed and the
prescribed fees are paid, the action is deemed commenced.
The court acquires jurisdiction over the person of the plaintiff
and the running of the prescriptive period for the action is
interrupted.
This rule was, however, relaxed by the Supreme Court in
some cases in which payment of the fee within a reasonable
time, but not beyond the prescriptive period, was permitted.
While payment of the prescribed docket fees 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 (Proton Pilipinas Corporation
v.. Banque Nationale De Paris).
NOTE: Even on appeal, the general rule is that payment
of docket fees within the prescribed period is mandatory
for the perfection of the appeal.
It is not simply the filing of the complaint or appropriate
initiatory pleading but the payment of the prescribed
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CIVIL PROCEDURE REVIEWER
docket fee that vests a trial court with jurisdiction over the
subject matter or nature of the action. In resolving the
issue of whether or not the correct amount of docket fees
were paid, it is also necessary to determine the true
nature of the complaint (The Heirs of the late Sps.
Ramiro v. Sps. Bacaron, G.R. No. 196874).
The Manchester Rule
Any defect in the original pleading resulting in
underpayment of the docket fees cannot be cured by
amendment, such as by the reduction of the claim as, for
all legal purposes, there is no original complaint over
which the court has acquired jurisdiction (Manchester v.
CA, G.R. No. 75919, May 7, 1987).
The Sun Insurance Rule
While the payment of 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.
The same rule applies to permissive counterclaims, third
party claims and 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 (Sun Insurance
v. Asuncion, G.R. No. 79937, February 13, 1989).
If the plaintiff fails to comply with the jurisdictional
requirement of payment of the docket fees, the defendant
should timely raise the issue of jurisdiction or else he
would be considered in estoppel. (Metropolitan Bank vs.
Perez citing National Steel Corp. v. CA)
Q: When do you apply the Manchester Doctrine?
A: If there is a deliberate, wilful, and intentional
refusal/avoidance/evasion to pay the filing fee
Q: What is the effect?
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A: The court does not acquire jurisdiction. And therefore,
there is no choice but to dismiss it.
Q: When do you apply Sun Insurance?
A: If there is no deliberate, wilful, and intentional
refusal/avoidance/evasion to pay the filing fee, the
insufficiency of payment was brought about without bad faith.
Q: What is the effect?
A: The court acquires jurisdiction. The court should not
dismiss the case. The court will have to issue an order to pay
the prescribed filing fee.
Incorrect assessment by the docket clerk
In the case of Intercontinental BroadCasting Corp. vs.
Hon. Legasto (G.R. No. 169108), the respondent relied on
the assessment made by the docket clerk which turned out
to be incorrect. The payment of the assessed docket fees,
as assessed, negates any imputation of bad faith or intent to
defraud the government by the respondent.
Q: Jordan was unintentionally pushed by Reggie. As a result,
Jordan suffered broken legs. He needs to pay P500,000 to
the hospital. He filed before the RTC a case to claim
P500,000 as damages against Reggie. After a few days,
however, he died in connection with the broken legs. The
heirs of Jordan decided to go to the RTC for the additional
loss of earning capacity. Is there a need to pay an additional
filing fee?
A: Yes, the loss of earning capacity is included in assessing
the proper filing fee to be paid. Failure to pay additional filing
fee shall constitute a lien on the judgment.
Indigent party
For purposes of a suit in forma pauperis, an indigent litigant
is not really a pauper, but is properly a person who is an
indigent although not a public charge, meaning that he has
no property or income sufficient for his support aside from his
labor, even if he is self-supporting when able to work and in
employment. The term "immediate family" includes those
members of the same household who are bound together by
ties of relationship but does not include those who are living
apart from the particular household of which the individual is
a member (Tokio Marine Malaya v. Valdez, G.R. No.
150107 and G.R. No. 150108).
Q: Who is an indigent party?
A: For a party to be considered by the court to be indigent
and therefore exempted to pay the filing fee, he or she
must be:
1. One whose gross income and that of his
immediate family do not exceed the amount
double the monthly minimum wage of an
employee; and
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2. Who does not own a real property with a fair
market value of P300,000.
Q: Pippen is an unemployed person living alone in a
house he owns in Ayala Alabang. He wants to file a case
for collection of sum of money against Jerry. Is Pippen
exempted to pay the prescribed filing fee?
A: No. While Pippen met the income criterion, he did not
qualify because of the second criterion. He owns a house
in Ayala Alabang, which is a very expensive
neighborhood.
NOTE: To be considered an indigent party, the two (2)
criteria must be met. Compliance to one does not suffice.
ADHERENCE OF JURISDICTION
Doctrine of Adherence of Jurisdiction
GR: Once jurisdiction has attached, it cannot be ousted by
subsequent happenings or events, although of a character
which would have prevented jurisdiction from attaching in the
first instance.
Even finality of the judgment does not totally deprive the
court of jurisdiction over the case. What the court loses is the
power to amend, modify or alter the judgment. Even after the
judgment has become final, the court retains jurisdiction to
enforce and execute it.
When a court of competent jurisdiction acquires jurisdiction
over the subject matter of a case, its authority continues,
subject only to the appellate authority, until the matter is
finally and completely disposed of, and that no court of
coordinate authority is at liberty to interfere with its action
(Pacific Ace Finance Ltd. v. Yanagisawa, G.R. No.
175303, April 11, 2012).
XPNs:
1. Where a subsequent statute expressly prohibits
the continued exercise of jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent law;
3. When accused is deprived of his constitutional
right such as where the court fails to provide
counsel for the accused who is unable to obtain
one and does not intelligently waive his
constitutional right;
4.
Where the statute expressly provides, or is
construed to the effect that it is intended to operate
as to actions pending before its enactment;
5.
When the proceedings in the court acquiring
jurisdiction is terminated, abandoned or declared
void;
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6.
Once appeal has been perfected; or
7.
Curative statutes.
EXAMPLE: X filed a case for collection of P500,000
before the RTC. Three (3) months after filing, and after
service of summons, a new law was passed and effected.
The new law expanded the jurisdiction of the MTC. The
MTC now has jurisdiction of amounts up to P1,000,000.
Here, the jurisdiction of the RTC over X’s case will not be
ousted because the new law is not curative in nature.
However, where there is a violation of basic constitutional
rights, courts are ousted from their jurisdiction. The
violation of a party’s right to due process raises a serious
jurisdictional issue which cannot be glossed over or
disregarded at will. Where the denial of the fundamental
right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction (Apo
Cement v. Mingson Mining, G.R. No. 206728,
November 12, 2014).
EFFECT OF LACK OF JURISDICTION
All acts performed pursuant to it and all claims emanating
from it have no legal effect. The decision rendered by a court
without jurisdiction is void and will never attain finality.
Consequently, any writ of execution based on it is also void.
A void judgment or order has no legal and binding effect,
force or efficacy for any purpose. In contemplation of law, it
is non-existent. Such judgment or order may be resisted in
any action or proceeding whenever it is involved. It is not
even necessary to take any steps to vacate or avoid a void
judgment or final order; it may simply be ignored.
A void judgment is no judgment at all. It cannot be the source
of any right nor the creator of any obligation. All acts
performed pursuant to it and all claims emanating from it
have no legal effect (Badillo v. Badillo, G.R. No. 165423,
January 19, 2011).
EXAMPLE: An unlawful detainer case was filed before the
RTC. The judge did not dismiss the case for any reason.
Nobody raised the issue of absence of jurisdiction over the
subject matter. Eventually, the plaintiff won. The defendant
changed counsel when the judgment has already attained
finality. Plaintiff’s counsel moved for the issuance of writ of
execution to execute the judgment.
Because the court had no jurisdiction, the judgment is
inherently void. The defendant’s counsel can very well
oppose the issuance of a writ of execution. As a general rule,
a writ of execution, as a matter of right, will issue once the
decision has already attained finality. However, no writ can
be issued if the judgment is inherently void. The period of
time will never cure that defect.
The issue on the validity of the judgment can be raised
even first time on appeal. However, in Tijam v.
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Sibonghanoy (G.R. No. L-21450, July 14, 2008), the
Supreme Court did not apply this rule because the case
has been pending for 15 years. It is now barred by the
principle on laches.
The rule is that jurisdiction over the subject matter is
conferred upon the courts exclusively by law, and as the
lack of it affects the very authority of the court to take
cognizance of the case, the objection may be raised at
any stage of the proceedings. However, considering the
facts and circumstances of the present case, a party may
be barred by laches from invoking this plea for the first
time on appeal for the purpose of annulling everything
done in the case with the active participation of said party
invoking the plea (Tijam v. Sibonghanoy, G.R. No. L21450, July 14, 2008).
Q: Do you have to file a motion for the court to dismiss
the case on the ground of lack of jurisdiction over the
subject matter?
A: No. The court, on its own, can order the dismissal of
the case, if based on the allegations of the pleading, the
court does not have jurisdiction over the subject matter.
An action for the annulment of a void judgment, like the
remedy of appeal, is a statutory right. No party may invoke
it unless a law expressly grants the right and identifies the
tribunal which has jurisdiction over this action. While a
void judgment is no judgment at all in legal contemplation,
any action to challenge it must be done through the
correct remedy and filed before the appropriate tribunal.
Procedural remedies and rules of jurisdiction are in place
in order to ensure that litigants are able to employ the
proper legal tools to obtain complete relief from the
tribunal fully equipped to grant it (Imperial v. Hon.
Armes, G.R. No. 178842, January 30, 2017).
SUSPENDED JURISDICTION
In PAL vs Kurangking (G.R. No. 146698, September 24,
2002), the Muslim Filipinos returned to Manila from their
pilgrimage abroad. They claim that their luggages were
lost by the Philippine Airlines (PAL). They sued PAL
before the RTC for breach of contract. After some time,
PAL suffered serious business losses as a result of Asian
economic crisis. PAL had to file a petition for rehabilitation
and then was placed under rehabilitation.
The RTC definitely has the jurisdiction over the claims of
the passengers but there was an intervening event, which
suspended the jurisdiction of the trial court and required
all the plaintiffs to file their claims before the rehabilitation
court.
The reason for suspending actions for claim against the
corporation is to enable the management committee or
rehabilitation receiver to effectively exercise its/his
powers free from any judicial or extrajudicial interference
that might unduly hinder or prevent the 'rescue' of the
debtor company. To allow such other action to continue
would only add to the burden of the management
committee or rehabilitation receiver, whose time, effort
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and resources would be wasted in defending claims
against the corporation instead of being directed toward
its restructuring and rehabilitation (PAL vs Kurangking
(G.R. No. 146698, September 24, 2002).
RESIDUAL JURISDICTION
In DBP vs Hon. Carpio (G.R. No. 195450, February 1, 2017),
residual jurisdiction refers to the authority of the trial court to
issue orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated by the
appeal; to approve compromises; to permit appeals by
indigent litigants; to order execution pending appeal in
accordance with Section 2, Rule 39; and to allow the
withdrawal of the appeal, provided these are done prior to
the transmittal of the original record or the record on appeal,
even if the appeal has already been perfected or despite the
approval of the record on appeal or in case of a petition for
review under Rule 42, before the CA gives due course to the
petition.
Residual jurisdiction presupposes that even if, technically,
the court has already lost its jurisdiction by reason of a notice
of appeal duly approved, such court can still exercise limited
jurisdiction on matters not subject to the controversy,
provided that the records are still with it.
Before the trial court can be said to have residual jurisdiction
over a case, a trial on the merits must have been conducted;
the court rendered judgment; and the aggrieved party
appealed therefrom (DBP v. Hon. Carpio, G.R. No. 195450,
February 1, 2017).
Residual jurisdiction exercised by the trial court
1.
Issue orders for the protection and preservation of
the parties which do not involve any matter litigated
by the appeal;
2.
Approve compromise agreements by the parties
after the judgment has been rendered;
3.
Allow appeals of indigent litigants;
4.
Order execution pending appeal in accordance with
Sec. 2, Rule 39; and
5.
Allow withdrawal of appeal.
NOTE: This must be done prior to the transmittal of the
original record to the appellate court in case of ordinary
appeal, and until the CA gives due course to the petition, in
case of a petition for review.
Q: Why is it important that the records of the case are still
with the trial court to exercise residual jurisdiction?
A: The trial court judge cannot make a ruling if the records
are not with the trial court anymore.
HIERARCHY OF COURTS
Concurrent Jurisdiction
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Rules of Court
It is the power of different courts to take cognizance of the
same subject matter. It is the concurrence of jurisdiction
among several courts which triggers that application of
the doctrine of hierarchy of courts.
Doctrine of Hierarchy of Courts
Where courts have concurrent jurisdiction over a subject
matter, such concurrence of jurisdiction does not grant the
party seeking relief the absolute freedom to file a petition
in any court of his choice. A case must be filed first before
the lowest court possible having the appropriate
jurisdiction.
The doctrine of hierarchy of courts is not an iron-clad rule.
This court has "full discretionary power to take
cognizance and assume jurisdiction over special civil
actions for certiorari ... filed directly with it for exceptionally
compelling reasons or if warranted by the nature of the
issues clearly and specifically raised in the petition
(Mariano vs. Turla, G.R. No. 187094, February 15,
2017).
1.
2.
3.
4.
5.
Rules 1 – 71: Rules on Civil Procedure
Rules 72 – 109: Rules on Special Proceedings
Rules 110 – 127: Rules on Criminal Procedure
Rules 128 – 134: Rules on Evidence
Rules 135 – 144: Legal Ethics
NOTE: The Rules of Court promulgated by the Supreme
Court constitutes the main source of remedial law in the
Philippines. It is not, however, the only source (Riano, 2016).
Supreme Court has the sole power or authority to issue rules
of procedure. It has the force and effect of law.
It is applicable to all courts except as otherwise provided by
the Supreme Court (Rule 1, Section 2).
EXAMPLE: Upon failure to file appellant’s brief, the case
was dismissed. He filed a petition for relief under Rule 38
which is a wrong remedy because it is applicable only to RTC
and not to CA. Relief afforded by Rule 38 is not a remedy as
a substitute for lost appeal.
The doctrine that requires respect for the hierarchy of
courts was created by this court to ensure that every level
of the judiciary performs its designated roles in an
effective and efficient manner (Mariano vs Turla citing
Diocese of Bacolod vs. Commission on Elections).
It is true that procedural rules must always be liberally
construed. The Court has the power to relax the application
of procedural rules or suspend them together in favor of
petitioner’s substantial rights. However, in applying this rule,
it presupposes the existence of substantive rights in favor of
which, the strict application must concede (Redeña v.
Redeña, G.R. No. 146611, February 6, 2007).
The principle of hierarchy of courts requires that
resources should be made to the lower courts before they
are made to the higher courts. Parties must observe the
hierarchy of courts before they can seek relief from the
Supreme Court.
NOTE: A motion for extension must be filed before the lapse
of the period, otherwise there is no more period to extend.
The reglementary period to appeal had in fact expired almost
10 months prior to the filing of petitioner’s motion for
extension of time.
NOTE: You have to put the justification for a direct resort to
a higher court in the first pages of the pleading; otherwise,
the case will be dismissed. This doctrine of hierarchy of
courts guides litigants as to the proper venue of appeals
and/or the appropriate forum for the issuance of
extraordinary writs. Thus, although this Court, the CA, and
the RTC have concurrent original jurisdiction over petitions
for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus, parties are directed, as a rule, to file their
petitions before the lower-ranked court. Failure to comply is
sufficient cause for the dismissal of the petition.
Although it has been said time and again that litigation is
not a game of technicalities, that every case must be
prosecuted in accordance with the prescribed procedure
so that issues may be properly presented and justly
resolved, this does not mean that procedural rules may
altogether be disregarded. Rules of procedure must be
faithfully followed except only when, for persuasive
reasons, they may be relaxed to relieve a litigant of an
injustice commensurate with his failure to comply with the
prescribed procedure. Concomitant to a liberal application
of the rules of procedure should be an effort on the part of
the party invoking liberality to adequately explain his
failure to abide by the rules. In the case at bar, petitioner
has not provided any cogent explanation that would
absolve him of the consequences of his repeated failure
to abide by the rules (Vda. De Victoria v. CA, G.R. No.
147550, January 26, 2005).
RULE 1: GENERAL PROVISIONS
Substantive law v. Remedial Law
Substantive law is that part of the law which creates, defines
and regulates rights, or which regulates the rights and duties
which give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to adjective
or remedial law, which prescribes the method of enforcing
rights or obtains redress for their invasion (Bernabe v. Alejo,
G.R. No. 140500, January 21, 2002).
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Rules of procedure must always be followed because it is
designed for orderly administration of justice. The
Supreme Court would only suspend the rules when there
is basis for suspension especially when the substantive
aspect of the case is very important. It will not be
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suspended if suspension is by failure to abide by the rules
attributable to the negligence of counsel.
CASES GOVERNED BY THE RULES OF
PROCEDURE
Civil Action
A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong. A civil action may either be ordinary
or special. Both are governed by the rules for ordinary civil
actions, subject to the specific rules prescribed for a
special civil action. (Rule 1, Section 3(a), RoC)
EXAMPLE: Maria filed a collection suit. Maria have a right
to claim so she enforced it through ordinary civil action.
Criminal Action
A criminal action is one by which the State prosecutes a
person for an act or omission punishable by law (Rule 1,
Section 3(b), RoC). It is a breach of public order.
Special Proceeding
A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact (Rule 1,
Section 3(c), RoC). There is no enforcement of a right
involved.
EXAMPLE: Change of name proceeding; Petition for
guardianship – no enforcement of right, what is sought is
to have a person of unsound mind to be declared as such
so that a guardian would be appointed over his person or
his property.
Ordinary Actions
There must be real parties with conflicting or adverse
claims.
Claim
A right possessed by one against another the moment
said claim is filed in court.
Original Special Civil Action
What differentiates this from an Ordinary Civil Actions is that
they have special rules.
EXAMPLE: Case involving eminent domain wherein the
government is taking A’s property for road widening. If the
government files a complaint and A does not file an answer,
A would not be declared in the default because the Rules do
not allow it; but if the case is an ordinary civil case, A would
have been declared in default. A might not be able to
participate in determining whether it is for public use but once
there is an order to expropriate, A may be able to participate
in the second phase.
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EXAMPLE: In unlawful detainer case, an answer must be
filed 10 days after receipt of summons but in an ordinary civil
case of accion publiciana, answer may be filed 30 days from
receipt. Regardless of the assessed value, an unlawful
detainer case must be filed in the MTC because that is what
the Rule dictates. In accion publiciana, the assessed value
must be identified to determine which court has jurisdiction
over the case.
REAL AND PERSONAL 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 initially by determining the
nature of an action. It is also important to know which court
has jurisdiction over a complaint. (Riano, 2016).
ACTIONS IN REM, IN PERSONAM, AND QUASI IN
REM
These are invoked in relation to Rule 39 (Applicability of
Judgement).
Action in rem
Judgement rendered in this case would be binding against
the whole world.
EXAMPLE: Decision rendered in a Cadastral case. Even if
A is not a party in the case, there is a binding effect as to
him.
Action in personam
Refers to personal liabilities of parties; binding only upon
them, their privies, their assignees, their heirs, and
successors-in-interest but not against the whole world. Its
main purpose is to establish a case against a particular
person or a person or property related to him.
EXAMPLE: Action for damages. If A files a case of purely
damages against B, the judgement is only binding upon them
and to their successors-in-interest.
Action quasi in rem
There is a judgement between parties but it relates with real
properties. Action brought against a particular defendant but
the real motive is to yield a real property or subject property
to certain things.
EXAMPLE: Foreclosure of property in Makati (house &
lot). It is an action quasi in rem because it involves the
liabilities of parties that would directly relate to a real
property. There is first determination of liability to pay and
such is only between the parties. If defendant is not able
to pay, court will allow plaintiff to foreclose on the
property, which will ultimately serve as payment. It is a
real action because it involves transfer of ownership and
possession, therefore the case must be filed where the
property lies (Makati).
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CIVIL PROCEDURE REVIEWER
NOTE: The filing of an action to accept payment does not
involve an issue of ownership or possession; what is
sought is merely to recover the TCT, because at that point
in time, the bank is not yet in possession of the property,
only its title. Therefore it is an action in personam and a
personal action. It is not a real action because it does
not involve ownership nor possession. Just because you
have the title does not mean you own the property.
Real action v. Action in rem; Personal action v. Action
in personam
A real action is not the same as an action in rem and a
personal action is not the same as an action in personam.
In a personal action, the plaintiff seeks the recovery of
personal property, the enforcement of a contract or the
recovery of damages. In a real action, the plaintiff seeks
the recovery of real property or, as indicated in Section
2(a) of Rule 4, a real action is an action affecting title to
real property or for the recovery of possession or for
partition or condemnation of, or foreclosure of a mortage
on, real property. An action in personam is an action
against a person on the basis of his personal liability,
while an action in rem is an action against the thing itself,
instead of against the person. Hence, a real action may at
the same time be an action in personam and not
necessary an action in rem (Hernandez v. Rural Bank of
Lucena, G.R. No. L-29791, January 10, 1978).
REAL
PERSONAL
Recovery of a
real property
Recovery of
a personal
property
• Title
or
possession,
• Partition or
• Condemnation of a
property
• Foreclosure
Enforcement
of a contract
IN
REM
Action
against
a thing
itself
IN
PERSONAM
Action on a
person
based on his
liability
Q: A borrowed money from B and executed a real estate
mortgage. However, A did not pay. B filed an action for
judicial foreclosure of mortgage. The property was now
sold to a bank in an auction sale; the writ of possession
was likewise executed. Meanwhile, A discovered that the
notices requirement was not followed so A filed an action
to annul the foreclosure sale.
A: It is a real action because there is already a writ of
possession; the bank already bought it. Therefore, the
case must be filed where the property lies.
Q: In the preceding situation, before the action for
foreclosure can be made, A filed an injunction case to
stop the foreclosure sale.
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A: Action in personam because the liability is only
among the parties and it is a personal action because
ownership and possession has not yet been transferred.
NOTE: The first case for annulment of deed of absolute
sale executed between Spouse Go and Ching was
initiated by Spouses Muñoz and judgement was rendered
in their favor. Meanwhile, the bank foreclosed the property
and sold it to Spouses Chan. Spouse Muñoz then filed an
action for forcible entry against Spouses Chan and the
bank, and invoked the decision in the first case. However,
the decision in the first case is not an action in rem but an
action in personam therefore it cannot be used to justify
or hold the bank liable because the bank was not a party
in the first case (Muñoz v. Yabut, G.R. No. 142676, June
6, 2011).
NOTE: In the Hernandez ruling, there is no foreclosure yet.
However, when the case is for cancellation of a real estate
mortgage where the bank had already proceeded with the
foreclosure proceedings because of the cancellation by the
respondent of the credit line, the primary objective is to
recover the property. Hence, because it already involves
ownership, possession, or any interest therein with respect
to the property, venue will have to be dictated by the place
where the property is situated (Go v. UCPB, G.R. No.
156187, November 11, 2004).
CASES NOT GOVERNED BY THE RULES OF
PROCEDURE
These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever
practicable and convenient (Rule 1, Section 4).
COMMENCEMENT OF ACTION
A civil action is commenced by the filing of the original
complaint in court. If an additional defendant is impleaded in
a later pleading, the action is commenced with regard to him
on the dated of the filing of such later pleading, irrespective
of whether the motion for its admission, if necessary, is
denied by the court (Rule 1, Section 5).
Prescription of actions
Q: In a promissory note dated March 1, 2000, A & B are
borrowers and C is the creditor which involves a joint and
solidary obligation. The breach happened on March 5, 2005.
The case was filed on March 30, 2010. Did the action
prescribe?
A: No, the action has not prescribed yet. Prescriptive period
is counted from the date of breach.
NOTE: The following are different limitation periods for
filing a civil claim (Articles 1139 to 1155, NCC):
CIVIL CLAIMS OVER
PERIOD
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CIVIL PROCEDURE REVIEWER
Immovable property
Movable property
Relating to a real estate
mortgage
Based on oral contracts
and quasi-contracts
Injury to the rights of the
plaintiff, and actions upon
a quasi-delict
Forcible entry, detainer,
and for defamation
30 years
8
years
from
possession is lost
10 years from
possession is lost
time
time
6 years
4 years
Within 1 year
Q: On the same premise, C filed the case on March 1, 2015.
However, C realized that when the case was filed, A did not
have money. So, on March 3, 2015, C filed a motion to admit
amended complaint to implead B. The court admitted the
amended complaint on June 10, 2015. Summons were
served to B and he raised the issue of prescription. Is B
correct?
A: No, B is not correct. Impleaded in a later pleading, the
action is commenced with regard to it on the date of the filing
which is March 3, 2015 and is still within the prescriptive
period. Even if the resolution of the court is beyond the
prescriptive period, it is still not an action that has prescribed.
Q: If the case was filed on the last day of the prescriptive
period and the defendant received the summons only after 6
months from filing, can defendant raise the defense of
prescription?
A: No, prescription stops upon filing of action, even if
summons was in fact served after the prescriptive period.
Article 1155 of the NCC provides that the prescription of
actions is interrupted when they are filed before the court,
when there is a written extrajudicial demand by the creditors,
and when there is any written acknowledgment of the debt
by the debtor.
CONSTRUCTION
These Rules shall be liberally construed in order to promote
their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding (Rule 1, Section
6).
the liberal interpretation of the rules must be able to hurdle
the heavy burden of proving that they deserve an exceptional
treatment. (Riano, 2016)
RULE 2: CAUSE OF ACTION
MEANING OF CAUSE OF ACTION
Every ordinary civil action must be based on a cause of
action (Rule 2, Section 1).
It is the act or omission by which a party violates a right of
another (Rule 2, Section 2).
Elements of a cause of action (Leg-C-A)
1.
The legal right of the plaintiff;
2.
The correlative obligation of the defendant;
and
3.
The act or omission of the defendant in
violation of the said legal right (Asia
Brewery, Inc. vs. Equitable PCI Bank,
G.R. No. 190432, April 25, 2017).
A single act or omission can be violative of various rights at
the same time but where there is only one delict or wrong,
there is but a single cause of action regardless of the
number of rights violated. The singleness of a cause of
action lies in the singleness of the delict or wrong violating
the rights of one person (Joseph vs. Bautista, G.R. No. L41423, February 23, 1989).
Nevertheless, if one injury resulted from several wrongful
acts, only one cause of action arises. The question as to
whether a plaintiff has a cause of action is determined by the
averments in the pleadings pertaining to the acts of the
defendant. Whether such acts give him a right of action is
determined by substantive law (Herrera, 2007).
Q. A borrowed money from B and will have to pay the
money on or before June 12. B sued A on May 2. Is there a
cause of action?
The rule is that courts should not be unduly strict on
procedural lapses that do not really impair the proper
administration of justice. The higher objective of procedural
rules is to ensure that the substantive rights of the parties are
protected (Riano, 2016).
A: No. The third element is lacking. There is no breach yet
because the action was premature when filed.
NOTE: Even if the rules should be liberally construed, parties
are not given the right to disregard the same with impunity.
Cause of action v. Right of action
GR: Despite the rule on liberal construction, compliance with
the procedural rules is still the general rule.
XPN: Abandonment thereof should only be done in the most
exceptional circumstances and save for the most persuasive
reasons, strict compliance with the rules is enjoined to
facilitate orderly administration of justice. Parties praying for
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NOTE: You will know if all the elements are present by
reading the complaint.
CAUSE OF ACTION
RIGHT OF ACTION
DEFINITION
A formal statement of the A remedial right or relief
operative facts that give granted by law to some
right to such remedial right. persons – the plaintiff
whose rights have been
violated by the defendant.
AS TO NATURE
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CIVIL PROCEDURE REVIEWER
The reason for the action or The right to commence and
the
delict
or
wrong maintain an action or the
committed by the defendant remedy or means afforded
in violation of the right of the or the consequent relief.
plaintiff.
AS TO GOVERNING LAW
A matter of statement and is A matter of right and
governed
by
law
on depends on the substantive
procedure.
law.
A cause of action is not A right of action may be
affected by the running of taken away by the running
the statute of limitations, by of the statute of limitations,
estoppel,
or
other by estoppel, or other
circumstances.
circumstances.
Relief
The redress, protection, award, or coercive measure
which the plaintiff prays the court to render in his favor as
consequence of the delict committed by the defendant.
NOTE: A party may not institute more than one suit for a
single cause of action (Rule 2, Section 3).
SPLITTING OF A SINGLE CAUSE OF ACTION AND
ITS EFFECTS
Splitting of cause of action
It is the act of instituting two or more suits on the basis of
the same cause of action (Rule 2, Section 4).
Prohibition against splitting a single cause of action
1. Breeds Multiplicity of suits;
3. Clogs the court dockets;
instrument
1.
Litis pendentia – If the first action is pending
when the second action is filed; or
2.
Res judicata – if a final judgment had been
rendered in the first action when the second
action is filed.
NOTE: Litis pendentia and forum shopping have similar
elements, so it is best for the counsel to move for the
dismissal based on forum shopping instead, and show that
the party or his counsel willfully and deliberately resorted to
forum shopping. This is because the effect is a dismissal with
prejudice, in addition to the sanction for direct contempt as
well as a cause for administrative sanctions.
In litis pendentia, it need not be the second action filed that
should be dismissed. As to which action should be dismissed
would depend upon judicial discretion and the prevailing
circumstances of the case.
Q. A executed a promissory note in favor of B and he did
not pay. B sued A for collection of 1M pesos by way of
actual damages, another 1M for mental anguish and
sleepless nights, 1M exemplary damages, and attorney’s
fees in the amount of 1M. How many cause/causes of
action is/are there?
A: There is one cause of action. The mentioned causes
of action arose out of one cause of action – A’s failure to
pay.
Q. A borrowed money from B and executed two
promissory notes in favor of B. A did not pay. Can B
institute two separate complaints?
2. Leads to Vexatious litigation;
4. Operates
as
an
Harassment; and
The defendant may file a motion to dismiss based on either
of the following grounds:
of
5. Generates unnecessary Expenses to the
parties.
Effect of splitting a cause of action
If two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment on the
merits in any one is available as a ground for the dismissal
of the others (Rule 2, Section 4).
NOTE: You cannot split a cause of action but you can join
causes of action.
Remedies against splitting causes of action
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A: Yes. B can institute two separate complaint because B
have two causes of action. Joinder of cause of action is
permissive.
Q: A borrowed money from B and executed a promissory
note in her favor. B required A to execute a real estate
mortgage. A failed to pay so B sued her for collection. If B
also sued her for judicial foreclosure, is B splitting causes
of action?
A: Yes. When B filed a collection case against A, it will be
a determination of whether or not A breached the
promissory note and before B can foreclose the mortgage
it is necessary that there is a finding that A breached the
promissory note.
Q: A borrowed 10 million pesos from B which the latter
should pay on annual equal installments of 2 million. A
paid the first installment but did not pay the second. After
A did not pay the second installment, B demanded
payment from A but still failed to pay. B sued A
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CIVIL PROCEDURE REVIEWER
notwithstanding the fact that the three other installments
have not yet matured. Will the case prosper?
NOTE: A joinder of causes of action is only permissive, not
compulsory; hence, a party may desire to file a single suit
for each of his claims.
A: Yes, there is already a breach.
Q: What if on the third year that A was supposed to pay still
he did not pay. Can B file a separate case?
A: Yes. At the time she filed the first case, there is no breach
yet on the third installment and the third installment
happened after the case on the second installment has been
filed. Thus, there is a different cause of action.
Q: What can be a scenario when A did not pay the second
installment but the 3rd, 4th, and 5th installment were already
made part of the complaint?
A: When there is an acceleration clause wherein a default
of one renders all installments due and demandable.
JOINDER AND MISJOINDER OF CAUSES OF
ACTION
Joinder of causes of action
It is the assertion of as many causes of action a party may
have against another in one pleading alone (Rule 2, Section
5).
Requisites of joinder of causes of action
Splitting of cause of action v. Joinder of causes of
action
SPLITTING OF CAUSE
JOINDER OF CAUSES
OF ACTION
OF ACTION
AS TO NUMBER OF CAUSES OF ACTION
There is a single cause of Contemplates
several
action.
causes of action.
AS TO ALLOWANCE BY THE RULES
Prohibited
Encouraged
AS TO EFFECT
It breeds multiplicity of It minimizes multiplicity of
suits, leads to vexatious suits and inconvenience
litigation, operates as an on the parties.
instrument of harassment
and,
generates
unnecessary expenses to
the parties.
Misjoinder of causes of action
When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed and
proceeded with separately upon motion by a party or upon
the court’s own initiative. Misjoinder is not a ground for the
dismissal of an action.
1.
The party shall comply with the rules on joinder of
parties (Rule 3, Section 6);
2.
The joinder shall not include special civil actions
governed by special rules;
SPLITTING
JOINDER
3.
Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the RTC provided one
of the causes of action falls within the jurisdiction of
said court and venue lies therein; and
There is a
single cause
of
action
split into two
or more.
Prohibited
Several
causes of
actions
combined
Totality Test – Where claims in all causes of action
are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction (Rule
2, Section 5).
Results into
multiple
suits
May
be
dismissed
due to litis
pendencia
or
res
judicata
4.
Totality Rule
When there are several claims or causes of actions
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 causes of action, irrespective of
whether the causes of action arose out of the same or
different transaction.
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Example: unlawful detainer case may NOT be joined with an
action for collection of sum of money.
Encouraged
Minimizes
multiple
suits
MISJOINDER
NONJOINDER
Wrongfully
A cause of
joined causes action not
of actions
included in
the
complaint
Not a ground for dismissal
Failure of Cause of Action v Lack of Cause of Action
Failure to state a cause of action and lack of cause of
action are really different from each other. On the one
hand, failure to state a cause of action refers to the
insufficiency of the pleading, and is a ground for dismissal
under Rule 16 of the Rule of Court. On the other hand,
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CIVIL PROCEDURE REVIEWER
lack of cause of action refers to a situation where the
evidence does not prove the cause of action alleged in the
pleading (Lourdes Suites v. Binaro, G.R. No. 204729,
August 6, 2014).
A cause of action is a formal statement of the operative
facts that give rise to remedial right. The question of
whether the complaint states a cause of action is
determined by its averments regarding the acts
committed by the defendant. Thus it “must contain a
concise statement of the ultimate or essential facts
constituting the plaintiff’s cause of action.” Failure to make
a sufficient allegation of a cause of action in the complaint
“warrants its dismissal” (Samson v. Spouses Gabor,
G.R. No. 182970, July 23, 2014).
The validity of a judgment or order of the court, which has
become final and executory, may be attacked only by a
direct action or proceeding to annul the same, or by
motion in another case if, in the latter case, the court had
no jurisdiction to enter the order or pronounce the
judgment. The first proceeding is a direct attack against
the order or judgment, because it is not incidental to, but
is the main object of, the proceeding. The other one is the
collateral attack, in which the purpose of the proceedings
is to obtain some relief, other than the vacation or setting
aside of the judgment, and the attack is only an incident.
A third manner is by a petition for relief from judgment
order as authorized by the statutes or by the rules, such
as those expressly provided in Rule 38, but in this case it
is to be noted that the relief is granted by express statutory
authority in the same action or proceeding in which the
judgment or order was entered (Agustin v Bacalan, G.R.
No. L-46000 March 18, 1985).
Where the claims in all the causes of action are principally
for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction (Sec. 5 (d), Rule 2) (Pantranco v.
Buncan, G.R. No. 1406, March 16, 2005).
A cause of action may be single although the plaintiff seeks
a variety of remedies. If the allegations of the complaint show
one primary right and one wrong, only one case of action is
alleged even though other matters are incidentally involved
(Sps. Decena v. Sps. Piquero, G.R. No. 155736, March 31,
2005).
In case of a loan secured by a mortgage, the creditor has a
single cause of action against the debtor – the recovery of
the credit with execution upon the security. The creditor
cannot split his single cause of action by filing a complaint on
the loan, and thereafter another separate complaint for
foreclosure of the mortgage (Central Visayas Finance
Corporation vs. Sps. Adlawan, G.R. No. 212674, March
25, 2019).
RULE 3: PARTIES TO CIVIL ACTION
SECTION 1: WHO MAY BE PARTIES
The plaintiff is the claiming party or more appropriately, the
original claiming party and is the one who files the complaint.
The term, does not exclusively apply to the original plaintiff.
It may also apply to a defendant who files a counterclaim, a
cross-claim or a third party complaint.
“Plaintiff” may refer to the claiming party, the counterclaimant, the cross-claimant or the third (fourth, etc.)-party
plaintiff
The defendant does not only refer to the original defending
party. If a counterclaim is filed against the original plaintiff,
the latter becomes a defendant and the former, a plaintiff in
the counterclaim.
“Defendant” refers also to a defendant in a counterclaim, the
cross-defendant, or the third (fourth, etc.)- party defendant
(Riano, 2016).
Only the following may be parties to a civil action:
1.
2.
3.
Natural persons,
Juridical persons, and
Entities authorized by law
Juridical persons as parties
Art. 44 of the Civil Code enumerates the juridical persons
who may be parties to a civil action:
1.
2.
3.
The State and its political subdivisions;
Other corporations, institutions and entities for
public interest or purpose, created by law; and
Corporations, partnerships and associations for
private interest or purpose to which the law grants a
juridical personality, separate and distinct from that
of each shareholder, partner or member.
NOTE: One need not be a natural or a juridical person to be
a party to a civil action. As long as an entity is authorized by
law to be a party, such entity may sue or be sued or both.
Examples:
1. A dissolved corporation may prosecute and defend
suits by or against it provided that the suits (a) occur
within three (3) years after its dissolution, and (b) the
suits are in connection with the settlement and
closure of its affairs (Sec. 122, Corporation Code
of the Philippines).
2. The estate of a deceased person is a juridical entity
that has a personality of its own (Nazareno v. Court
of Appeals, G.R. No. 138842 October 18, 2000).
3. A corporation by estoppel is precluded from denying
its existence and the members thereof can be sued
and be held liable as general partners (Sec. 21,
Corporation Code of the Philippines).
Parties to a civil action
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CIVIL PROCEDURE REVIEWER
SECTION 2: PARTIES IN INTEREST
GR: Husband and wife shall sue or be sued jointly.
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.
XPN:
1. A spouse without just cause abandons the
other or fails to comply with his or her
obligation to the family with respect to the
marital, parental, or property relations
(Article 101 and 108, Family Code).
2. A spouse may mortgage, encumber,
alienate, or dispose of his or her exclusive
property and appear alone in court to litigate
(Article 111, Family Code).
3. Separation of property governs the property
relations of the spouses (Article 145, Family
Code).
The interest must be “real,” which is a present substantial
interest as distinguished from a mere expectancy or a
future, contingent subordinate or consequential interest
(Rayo v. Metrobank, G.R. No. 165142, December 10,
2007). It is an interest that is material and direct, as
distinguished from a mere incidental interest (Dagadag v.
Tongnawa, G.R. NOS. 161166-67. February 03, 2005).
Only parties who are natural and juridical are allowed to
be real parties in interest. Incorporated persons or those
who represent themselves as corporations cannot sue
because they do not have the capacity to sue and to act.
However, they can be sued. In this case, they represented
themselves as a duly corporate entity, however, they were
not able to incorporate themselves. In this case, the
principle of laches is applied (Chiang kai Shek School v.
CA, GR No. 58028, April 18, 1989).
SECTION 3: REPRESENTATIVES AS PARTIES
Some actions may be allowed to be prosecuted or
defended by a representative or someone acting in a
fiduciary capacity like a trustee of an express trust, a
guardian, an executor or administrator, or a party
authorized by law or by the Rules.
The exception when an agent may sue or be sued
without joining the principal:
An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining
the principal except when the contract involves things
belonging to the principal.
Thus an agent may sue or be sued solely in its own
name and without joining the principal when the
following elements concur:
1. The agent acted in his own name during the
transaction;
2. The agent acted for the benefit of an undisclosed
principal; and
3. The transaction did not involve the property of the
principal.
When these elements are present, the agent becomes
bound as if the transaction were its own (V-gent, Inc., v.
Morning Star Travel and Tours, Inc., G.R. No. 186305,
July 22, 2015).
SECTION 4: SPOUSES AS PARTIES
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SECTION 5: MINOR OR INCOMPETENT PERSONS
A minor or incompetent may sue or be sued with the
assistance of his father, mother, guardian, or guardian ad
litem (Rule 3, Section 5, RoC).
SECTION 6: PERMISSIVE JOINDER OF PARTIES
Requisites of Permissive Joinder:
1.
2.
3.
The right to relief arises out of the same transaction
or series of transactions.
There is a question of law or fact common to all the
plaintiffs and defendants.
Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdiction (1 Regalado).
Series of Transactions means separate dealing with the
parties but all of which dealing are directly connected with
the same type of subject matter of the suit (1 Regalado).
Q: A borrowed from B, D also from B 100,000 then borrowed
E borrowed also from B 200,000. Can B sue them in a single
action?
A: NO. It cannot be joined. It aroused from different
transactions. It did not arise from the same series of
transactions nor involves a common question of fact or law.
But if it is multiple debtors, for example A borrowed money
from B in different situations, then B can sue her in a single
action.
Q: A was driving her car in front of B when the latter
accidentally hit her car. The reason for such is that there was
a truck behind B whose driver lost control. A incurred
damages in the amount of P6,000. Can A sue B and the
driver of the truck in one complaint?
A: YES. It arose from the same transaction which is the
vehicular collision.
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CIVIL PROCEDURE REVIEWER
SECTION 7: COMPULSORY JOINDER OF
INDISPENSABLE PARTIES
Indispensable parties are those with such an interest in
the controversy that a final decree would necessarily
affect their rights so that courts cannot proceed without
their presence.
Effect of failure to join an indispensable party:
The judgment of the court cannot attain real finality (ValdezTallorin v Heirs of Tarona, G.R. 177449, November 24,
2009). 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 (Bacalso v Padigos, G.R. No. 173192,
April 18, 2008).
NOTE: However, an outright dismissal is NOT the immediate
remedy
authorized
because,
under
the
Rules,
misjoinder/nonjoinder of parties is NOT a ground for
dismissal. ft is when the order of the court to implead an
indispensable party goes unheeded may the case be
dismissed, In such case, the court may dismiss the complaint
due to the fault of the plaintiff as when he does not comply
with any order of the court such as an order to join
indispensable parties (Sec. 3, Rule 17) [Riano. 2014, citing
Plasabas v. CA, C.R. No. 166519, March 31, 2009).
Remedy of the counsel of the defendant if the plaintiff
failed to implead the indispensable party upon the
order of the court:
File a Motion to Dismiss due to the fault of the plaintiff under
Section 3 of Rule 17 (as a disobedient party).
Tests to determine
indispensable party:
whether
a
party
is
an
1. Can the relief be afforded to the plaintiff without the
presence of the other party?
2. Can the case be decided on its merits without prejudicing
the rights of the other party? (Rep. v. Sandiganbayan, C.R.
No. 152154, July 15, 2003)
How do you implead:
1. File an amended complaint.
2. Must show a cause of action.
Q: Is it always the case that upon death of the parties,
the heirs should be impleaded?
A: NO. It depends. If it is a personal action, if the death
happened before the filing of the case, the case is
extinguished, thus no need to implead the heir. If it is an
action which survives after death, then there is a need to
implead the heirs.
SECTION 8: NECESSARY PARTY
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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, Section 8, RoC).
Indispensable party v Necessary Party
INDISPENSABLE
NECESSARY
AS TO DEFINITION
Those
who
are
not
indispensable but ought to be
joined as parties if complete
Those with whom no final
relief is to be accorded as to
determination can be had
those already parties or for a
of action
complete determination or
settlement of the claim
subject of the action
AS TO EFFECT ON JUDGMENT IF NOT IMPLEADED
Even if not included in the
The court cannot proceed suit, the case may be finally
without him and any determined in court, but the
judgement would be null judgment therein will not
and void.
resolve
the
whole
controversy.
AS TO EFFECT OF FAILURE TO OBEY COURT
ORDER TO IMPLEAD THE PARTY
Failure to comply with the
Failure to comply with the
order of the court to include a
order of the court to
necessary party, without
implead an indispensable
justifiable cause, shall be
party
warrants
the
deemed a waiver of the claim
dismissal of the complaint.
against such part.
Q: Is a guarantor a necessary or indispensable
party? What about a continuing surety?
A: A guarantor is a necessary party because there could still
be a complete relief even without him joining the case.
In a continuing surety, you can sue either of the surety or the
principal since the liability of a surety and the principal-party
is a solidary liability. It is still a necessary party, since in the
event that one of the parties cannot pay she could demand
from the other to pay.
Q: A, B, C, and D co-owned a land. X, the tenant did not
pay despite notice. D alone sued X for unlawful detainer.
X filed a motion to implead the other co-owners. If you
were the judge, would you grant or deny the motion?
A: Deny. As co-owner as long as it would benefit the coownership, D can sue alone and there is no need to implead
the other co-owners.
Impleading co-owners:
Q: Whether or not the petitioners need to implead
their co-owners as parties?
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A: NO. Article 487 of the Civil Code, which provides that any
one of the co-owners may bring an action for ejectment,
covers all kinds of actions for the recovery of possession,
including an accion publiciana and accion reivindicatoria.
Thus, a co-owner may file a suit without necessarily joining
the other co-owners as co-plaintiffs because the suit is
deemed to be instituted for the benefit of all. However, if the
judgment is adverse, the same cannot prejudice the rights of
the unimpleaded co- owners.
XPN: when the action is for the benefit of the plaintiff alone
who claims to be the sole owner (Nieves Plasabas and
Marcis Malazarte v CA, Dominador Lumen, G.R. NO.
166519, March 31, 2009).
Q: A, B, C, D are siblings. The mother donated the land
to D, only for the reason he was employed and could
receive benefits from the SSS. The mother really intends
to give the property to the siblings as co-owners. When
the mother died, D claimed ownership of the whole
property. C wanted to implead A & B in suing D, should
they be impleaded?
A: YES. Both A & B are indispensable parties with respect to
their share of the property. C is only suing for her respective
share of the property, thus a need to also implead A & B.
Q: Husband and wife own a property. Both of them
mortgaged the property as collateral to the debt they
incurred. It was only the wife who was sued for judicial
foreclosure of the mortgage. Is the husband an
indispensable if the debt is a surety only?
A: YES. The case is judicial foreclosure which is a quasi in
rem. It is directed against them and the property as co-owned
by them. He must be impleaded because of the real estate
mortgage he also executed.
SECTION 9: NON-JOINDER OF NECESSARY
PARTIES TO BE PLEADED
Duty of the pleader whenever a Necessary Party is
Not Joined:
1. Set forth the name of the necessary party, if known;
and
2. State why such party is omitted (Rule 3, Section 9,
RoC).
When court may order joinder of a necessary party:
If the reason given for the non-joinder of the necessary
party is found by the court to be unmeritorious, it may
order the pleader to join the omitted party if jurisdiction
over his person may be obtained (Rule 3, Section 9,
RoC).
Effect of failure to comply with the order of the
court:
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The failure to comply with the order of the court to
include a necessary party, without justifiable cause, shall
be deemed a waiver of the claim against such party
(Rule 3, Section 9, RoC).
Effect of a justified non-inclusion of a necessary party
The non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party (Rule 3, Section 9 RoC; Agro
Conglomerates, Inc. v. Court of Appeals, 348 SCRA
450, 460; Hemedez v. Court, 316 SCRA 347, 375).
SECTION 10: UNWILLING CO-PLAINTIFF
Unwilling co-plaintiff is a party who is supposed to be a
plaintiff but whose consent to be joined as a plaintiff cannot
be obtained as when he refuses to be a party to the action
(Riano, 2016).
Under Sec. 10 of Rule 3, said unwilling co-plaintiff:
(a) may be made a defendant, and
(b) the reason therefor shall be stated in the complaint
(Riano, 2016).
Q: Co-owners of a property. A, B, wanted to sue X but C
does not. What would the title of the case be?
A: A and B, plaintiff v X, defendant and C, unwilling plaintiff
SECTION 11: MISJOINDER AND NON-JOINDER OF
PARTIES
Neither misjoinder nor non-joinder of parties is ground for
dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and
proceeded with separately (Rule 3, Section 11, RoC).
Misjoinder vs. Non-joinder
MISJOINDER OR
PARTIES
A party is misjoined when
he is made a party to the
action although he should
not be impleaded.
NON-JOINDER OF
PARTIES
A party is not joined when
he is supposed to be
joined
but
is
not
impleaded in the action.
Misjoined parties may be dropped motu proprio by
the court
The dropping of misjoined parties from the complaint may
be done motu proprio by the court, at any stage, without
need for a motion to such effect from the adverse
party. Section 11, Rule 3 indicates that the misjoinder of
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CIVIL PROCEDURE REVIEWER
parties, while erroneous, may be corrected with ease
through amendment, without further hindrance to the
prosecution of the suit (Chua vs. Torres G.R. NO.
151900 August 30, 2005).
Remedy in cases of non-joinder of indispensable
parties
The remedy of the defendant is to file a motion to implead
the non-party claimed to be indispensable. If the motion is
granted, the court will order the plaintiff to amend his/her
complaint to include the indispensable party (Divinagracia
vs. Parilla, et al., G.R. No. 196750, March 11, 2015).
Effect of failure/refusal of the plaintiff to implead an
indispensable party
If the plaintiff refuses to implead an indispensable party
despite the order of the court, a motion to dismiss
pursuant to Rule 17, Sec. 3 may be filed on the ground of
failure to comply with the order of the court (Domingo vs.
Scheer, G.R. No. 154745, January 29, 2004).
Q: What if the party sought to be included is only a
necessary party and not an indispensable party, can
the case be also dismissed for failure to comply with
the court’s orders?
A: No. The failure to comply with the order of the court to
include a necessary party, without justifiable cause, shall
be deemed a waiver of the claim against such party. The
non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party (Rule 3, Section 9, RoC).
SECTION 12: CLASS SUIT
1.
2.
3.
4.
The subject matter of controversy is one of common or
general interest to many persons;
The parties affected are so numerous that it is
impracticable to bring them all to court;
The parties bringing the class suit are sufficiently
numerous or representative of the class and can fully
protect the interests of all concerned; and
The representatives sue or defend for the benefit of all
(Sulo ng Bayan, Inc. v. Araneta, 72 SCRA 347).
Commonality of Interest in the Subject Matter
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required by the Rules
is a common or general interest in the subject matter of the
litigation. The ‘subject matter’ of the action is meant the
physical, the things real or personal, the money, lands,
chattels, and the like, in relation to the suit which is
prosecuted and not the delict or wrong committed by the
defendant. It is not also a common question of law that
sustains a class suit but a common interest in the subject
matter of the controversy (Mathay v. Consolidated Bank &
Trust Co., 58 SCRA 559, 571).
NOTE: If the class suit is not proper, the remedy of the
parties is either to bring suit individually, or join them all as
parties under the rule on permissive joinder of parties.
SECTION 13:
ALTERNATIVE DEFENDANTS
Q: M (the consignee) bought masks in the US. The
masks will be loaded to the ship. It will be unloaded by
another company that will deliver the masks to the
delivery truck and the latter will deliver it to different
entities. What if I ordered 10,000 but I only received 5,000
masks. Who can M sue?
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 (Rule 3,
Section 12, RoC).
A: M can sue all of them even if the right of relief is different.
M can sue the seller on the ground of breach of contract. M
can sue the ship on the ground of contract of carriage while
the other companies will be based on tort. M does not have
to initiate one suit against one party only. All of these
complaints can be heard.
It is an action where one or some of the parties may sue
for the benefit of all if the requisites for said action are
complied with (Riano, 2014).
SECTION 14:
UNKNOWN IDENTITY OR NAME OF DEFENDANT
An action does not become a class suit merely because it
is designated as such in the pleadings. Whether the suit
is or is not a class suit depends upon the attendant facts
(Mathay v. Consolidated Bank & Trust Company, 58
SCRA 559).
Elements
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EXAMPLE: A person sues a principal and an agent together.
There is an application of an alternative defendant.
Requisites: (D-U)
1.
2.
There is a Defendant
The defendant is Unknown
Use of a fictitious name
The plaintiff can use a fictitious name because of the
ignorance of the defendant’s true name. But he must have
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CIVIL PROCEDURE REVIEWER
an identifying description (unknown owner, heir, devisee,
or other designations). Then amend the pleading once the
name of the unknown defendant has been discovered.
Unknown identity, serving summons
Q: Pedro went to Boracay through a boat, but he does
not know the owner of the boat. During the trip, one of
the heirs of Pedro died. The suit was titled Pedro Cruz
vs. the unknown owner MV Lulubog-Lilitaw. How will the
court acquire jurisdiction over the defendant?
A: Under Rule 14, Section 16 (Service upon defendant
whose identity or whereabouts are unknown), formerly Rule
14, Section 14, the summons may be served through
publication to acquire jurisdiction over the unknown
defendant. Once the unknown defendant files an A to the
complaint, he will be disclosing his name. After that, you can
now move for the amendment of your complaint so that it will
now reflect the name of the defendant.
SECTION 15:
ENTITY WITHOUT JURIDICAL PERSONALITY AS
DEFENDANT
A person who is not a juridical entity can be sued but they
cannot sue.
Q: Pedro and Juan, not organized as an entity, but doing
business under the name X company. Can they sue
under the name of X company? How do you serve
summons to Pedro and Juan?
A: They cannot sue as X company because they do not have
the juridical personality if they are unorganized. Meanwhile,
the summons must be served pursuant to Rule 14, Section
7 or Service upon entity without juridical personality. “Service
may be effected upon all the defendants by serving upon any
one of them or upon the person in charge of the office…”
(Rule 14, Section 7, RoC).
Importance of amending a complaint
In an issuance of a writ of execution, if you sued an unknown
defendant and you did not change the name once his name
was discovered, the writ of execution will be issued in the
name of an “unknown owner.” You cannot locate an
“unknown owner” hence, the writ of execution must conform
with the decision. Such cannot be enforced when it is
addressed to an unknown defendant.
Judgments rendered
With respect to judgments rendered in this situation, Section
6, Rule 36 provides that when judgment is rendered against
two or more persons associated in an entity without juridical
personality, the judgments shall set out their individual or
proper names, if known (1 REGALADO, supra at 102).
SECTION 16:
DEATH OF PARTY, DUTY OF COUNSEL
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Death always has an effect on a case.
Actions that survive death: (R-E-D)
1.
2.
3.
Recovery of property
Enforcement of a lien on the property
Damages, money claims (express or implied)
Test to determine whether an action survives the
death of a party
The question as to whether an action survives or not
depends on the nature of the action and the damage sued
for (Cruz v. Cruz, GR No. 173292, September 1, 2010).
In a cause of action that survives, the wrong complained of
primarily and principally affects property and property rights,
the injuries to the person being merely incidental.
In a cause of action that does not survive, the injury
complained of is to the person, the property and rights of
property affected being incidental.
NOTE: This rule is applicable regardless of whether it is the
plaintiff or the defendant who dies, or whether the case is in
the trial or in the appellate courts (Jardeleza v. Sps.
Jardeleza, GR No. 167975, June 11, 2015).
Actions that survive death v Actions that dies not
survive death
CLAIMS THAT SURVIVE
1. Recovery of contractual
money /claims (oral or
written)
2. Recovery/protection of
property rights;
3. Recovery of real or
personal property or
interest;
4. Enforcement of lien
5. Recovery of damages
for an injury to person or
property and suits by
reason of the alleged
tortuous acts of the
defendant (Board of
Liquidators v. Kalaw,
G.R.
No.
L-18805,
August 14, 1967);
6. Actions and obligations
arising from delicts
(Aguas v. Llemos, G.R.
No. L- 18107, August
30, 1962); and
CLAIMS THAT DO NOT
SURVIVE
1. Purely Personal (e.g.
Legal Separation);
2. Performance that cannot
be purely delegated; and
3. Claim that cannot be
instituted by executor or
administrator.
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7. Ejectment
case
(Tanhueco v. Aguilar,
G.R. No. L-30369, May
29, 1970)
absolute sale of the lot with damages. Later on, S died.
Can there be substitution of parties?
A: Yes, because the recovery of a real property is an action
that survives.
Examples of actions that survives death:
1. Chattel mortgage
2. Injunction with damages
3. Solutio indebiti, negotiorium gestio (implied
money claims)
4. Collection of sum of money based on contract
(express money claim)
1. Petition for annulment of marriage
2. Action for support
3. Legal separation
Q: If the party died while the case is pending, will the
action survive death?
A: It depends on the action. If judgment is already
rendered, the rule is quite different:
Death Diagram:
Death (1)
A: Yes, because it is an action for damages and it is an action
that survives death.
NOTE: You cannot file a case against a person who is
already dead because no one will receive the summons. The
remedy is to amend the complaint and include the real party
in interest; either the executor, administrator or the legal
heirs of the deceased.
Cause of action, personal to the deceased
Judgement
Death (2)
A: Yes, because it is an enforcement of a lien on the
property. Eve’s heirs can file for the foreclosure of the
property and damages.
Q: Louis is crossing the road. And because he is sleepy,
somebody ran over him. Louis’ bones were broken and
he was rushed to the UST Hospital. Due to the injury, he
incurred 1 million pesos. Later on, Louis died. Can
Louis’ heirs sue?
Examples of actions that do not survive death
Case filed
Q: Faye borrowed money from Eve. The former executed
a real estate mortgage in favor of Eve in lieu of the loan.
Faye did not pay, and because of this, Eve suffered a
heart attack. Can Eve’s heirs file a case of foreclosure of
real estate mortgage against Faye?
Finality
Q: Christian and Jet are husband and wife. Jet later
found out that Christian and Bryan have a romantic
relationship, so she filed a petition for legal separation
on the ground of homosexuality. After Jet presented
evidence, she died. Can Jet’s mother, S, file a motion for
substitution of parties?
A: No, because it is a personal action. Even if the court
decrees that the issues may constitute legal separation, how
can they execute the judgement when the other party is
already dead.
Q: What if there is a judgement that attained finality and
the properties are on the process of liquidation. During
the process, one of the spouses died. May S now file a
motion for substitution?
A: Yes. S can now file because one of the consequences of
legal separation is to disinherit the guilty spouse. Therefore,
the reason why S wants to substitute Jet is because S is the
heir of Jet.
Q: S sold a parcel of lot to Bryan to which the latter is
obligated to pay the lot in installments. However, Bryan
was not able to pay. S filed a case for reconveyance of
property against Bryan. S wanted to rescind the deed of
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Sereno, one of the defendants in the labor case died. The
rest of the defendants used the death of Sereno to
expunge the complaint against them. The death of Sereno
cannot invoke the death of their co-defendant because
the action is personal only to the one who died.
The case at bar which is an action for the recovery of a
personal property, a motor vehicle, is an action that
survives pursuant to Section 1, Rule 87 of the Rules of
Court. As such, it is not extinguished by the death of a
party (Atty. Rogelio E. Sarsaba v. Fe vda De Te,
represented by her Attorney-in-Fact Faustino
Castañeda, G.R. No. 175910, July 30, 2009).
When the case is already filed and the party dies
The counsel must inform the court first that his client died.
Then identify first if the action survives death (R-E-D). If
the action survives death, inform the court who will be the
substitutes: executor, administrator or the legal heirs. The
court will thereafter issue a notice of substitution. This is
for purposes of due process.
GR: Without a notice of substitution of parties, the
proceedings and the judgement will be void.
XPN: If the heirs actively participated in the litigation
without the notice of substitution, then they have already
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CIVIL PROCEDURE REVIEWER
complied with the requirements of due process (Vda. De
Salazar v. CA, GR No. 121510, November 23, 1995).
NOTE: There is no need to issue summons after the
substitution because the court already has the jurisdiction
before he died.
Death, succession
Death opens up succession. And that’s the reason why
there is a need for substitution. The executor,
administrator or legal heirs has a part on what will happen
to the property that they are supposed to inherit. The heirs
will not pay for the debt, but the debt will be paid through
the property of the deceased.
Despite the death of Haberer, the counsel should not drop
the case. The lawyer should protect the interest of the
deceased. Since no administrator of the estate of the
deceased appellant had yet been appointed as the same
was still pending determination, the motion of the
deceased's counsel for the suspension of the running of
the period within which to file appellant's brief was welltaken (Nuguid v. de Haberer, G.R. Nos. L-42699 to L42709 May 26, 1981).
The heirs actively participated in the litigation despite the
fact that there was no notice of substitution. This case
involves an ejectment case which is a type of action that
survives death. It survives because it involves recovery or
repossession of real property (Vda. De Salazar v. CA,
GR No. 121510, November 23, 1995).
The fact that certain persons are now registered as
stockholders in the corporation will not bar the filing of a
derivative suit. Since all the shares of Alice are still in the
name of John. The estate becomes an indispensable
property (Gochan v. Young, GR No. 131889, March 12,
2001).
NOTE: Actions that survive death covers the recovery of
real properties, personal and shares of stocks.
In this case, the heirs voluntarily appeared in the litigation,
hence formal substitution is no longer required (Spouses
Ibañez vs. Harper, G.R. No. 194272, February 15,
2017).
Q: Lot X is a vacant lot where a new building is being
erected by A. And because of the foundation of the
building, B’s lot, where a school is located, is being
compromised. B filed an action against A to stop the
construction (injunction case). However, A died. Will
there be a substitution?
A: As a general rule, no, the action will not survive death.
However, it may survive if there is damages or if it is a lien
on the property in the sense that the construction on the
property cannot be allowed because it is going to destroy the
integrity of B’s school.
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Counsel’s death:
In this case, the counsel is the one who died however the
litigant was not able to inform the court. It is the duty of the
litigant to inform the court of the death of the counsel
(Ventanilla v. Tan, G.R. No. 180325, February 20, 2013).
SECTION 17:
DEATH OR SEPARATION OF A PARTY WHO IS A
PUBLIC OFFICER
The action may be continued and maintained by or against
the successor in the public office if the following requisites
are present:
1.
2.
3.
4.
5.
The public officer is a party to an action in his official
capacity
During the pendency of the action, he either dies,
resigns or ceases to hold office
It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office, that
there is a substantial need for continuing or
maintaining the action
That the successor adopts or continues or threatens
to adopt or continue the action of his predecessor
The party or officer affected has been given
reasonable notice of the application therefor and
accorded an opportunity to be heard.
The case involves a public officer, Mayor Dagadag who sued
the employees in his official capacity. The employees won,
however, the one who appealed is the new mayor. When a
public officer is a party in an action in his official capacity and
during its pendency dies, resigns or otherwise ceases to hold
office, the action may be continued and maintained by or
against his successor if, within thirty (30) days after the
successor takes office or such time as may be granted by
the court, it is satisfactorily shown to the court by any party
that there is a substantial need for continuing or maintaining
it and that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor (Dagadag v.
Tongnawa, G.R. NO. 161166-67, February 03, 2005).
NOTE: However, if the employees sued the mayor in his
personal capacity, even if he is no longer re-elected as
mayor, the suit may prosper.
Substitution, officer is sued both in personal and
official capacity
The officer will have to be substituted as far as his
personal capacity is concerned especially if the claim is
for damages.
This involves co-ownership wherein all of them are real
parties in interest. One of the co-owners may file against
a defendant. However, if one of the co-owners is claiming
that the property is owned by him, all of the co-owners
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CIVIL PROCEDURE REVIEWER
must be impleaded because they are indispensable
parties.
The RTC’s Decision in favor of Guzman is valid despite
the failure to comply with Section 16, Rule 3 because of
the express waiver of the heirs to the jurisdiction over their
persons, and because there had been, before the
promulgation of the RTC Decision, no further proceedings
requiring the appearance of de Guzman’s counsel
(Carandang c. De Guzman, G.R. No. 160347,
November 29, 2006).
When co-owner dies
If a co-owner dies, sue the heirs of the co-owner as they
are the substitutes of the deceased.
Q: All 2A students are co-owners of M. M sued them for
ejectment, however, M died. Who will substitute M?
A: M’s heirs will be the substitute because they will be
the new co-owners of 2A students.
In this case, the heirs of Toledo are not indispensable
parties because the obligation of Manuel and his wife is
solidary. Manuel Toledo died before the case is filed. The
court did not acquire jurisdiction because Manuel already
died even before the case was filed. The one to be
impleaded should by the wife of Manuel and not his
children. Even though a notice of substitution is given to
the heirs in this case, the court has not acquired
jurisdiction over Manuel for he has already died before the
institution of the case (Boston Equity Resources, Inc.
vs. CA, G.R. No. 173946, June 19, 2013).
This case involves property rights. Substitution must be
applied only in cases where the action survives death.
(Torres v. Rodellas, G.R. No. 177836, September 4,
2000).
SECTION 18:
INCOMPETENCY OR INCAPACITY
In case of supervening incapacity or incompetency of a
party, the action shall continue to be prosecuted by or
against him personally and not through his
representatives, in line with the amendments in Sections
3 and 5 of this Rule, since he continues to be the real party
in interest, although assisted by the corresponding
guardian (1 REGALADO, supra at 110).
Who are Incompetents: (Rule 92, Section 2, RoC)
C-Le-P-D-U-N
1. persons suffering the penalty of civil interdiction
or
2. hospitalized lepers
3. prodigals,
4. deaf and dumb who are unable to read and write,
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5. those who are of unsound mind, even though
they have lucid intervals,
6. persons not being of unsound mind, but cannot,
without outside aid, take care of themselves and
manage their property, becoming thereby an
easy prey for deceit and exploitation (A-D-W-O)
a) by reason of age,
b) disease,
c) weak mind,
d) other similar causes
Incompetence, not a cause of dismissal of an action
Being an incompetent is not a ground to have the case
dismissed. Their remedy is just to ask the court to be
substituted. The incompetent party will be assisted by a
legal guardian or guardian ad litem.
NOTE: There is no need to file for another case for the
appointment of a guardian. The court just needs to move
that a guardian has been appointed.
SECTION 19:
TRANSFER OF INTEREST
The transfer of interest referred to in this section is a transfer
that occurs during the pendency of the action.
Where the transfer was effected before the commencement
of the suit, the transferee must necessarily be the defendant
or the plaintiff, but he may file a third-party complaint and
implead the transferor in the action whenever the same is
necessary and proper for a complete determination of all the
rights of the parties (1 REGALADO, supra at 110).
The substitution under this section is not mandatory and a
transferee pendente lite is not an indispensable party but is
a necessary party to the case.
Types of substitution:
1. Death
2. Transfer of interest
This involves an action for collection of sum or money.
Transferee pendente lite stands on the shoes of the party
(Grandholdings Investment v. CA, TJR Industrial,
G.R. No. 221271. June 19, 2019).
Death vs. Transfer of Interest
DEATH
Substitution must be
made as part of due
process.
The court has no
discretion to deny the
TRANSFER OF INTEREST
“may” in the law reflects
discretion on whether or not
a party may be substituted.
The court is given leeway to
ascertain the propriety of
substitution.
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CIVIL PROCEDURE REVIEWER
substitution if the action
survives death.
The substitute (executor,
administrator or legal
heirs) are indispensable
parties.
Death occurs either
during the pendency of
the action or after the
judgement has already
been rendered.
Finality of judgement, death
A transferee pendente lite is
not an indispensable party
but a necessary party.
Transfer occurs during the
pendency of the action
Transferee pendente lite
A transferee stands exactly in the shoes of the transferor or
original party. The transferee is bound by the proceedings
and judgement in the case in such a way that they are no
longer required to be impleaded.
Example: ABC corporation owns a property. They later on
sold the property to XYZ company while a case is pending
against them. It is assumed that XYZ company or the
transferee pendente lite knows that the property is subject of
a pending case especially if there is a notice of lis pendens
on the property. Then XYZ is bound by the judgement of the
case.
SECTION 20:
ACTION AND CONTRACTUAL MONEY CLAIMS
Requisites for action and contractual money claims:
(R-C)
1.
2.
The action must be primarily for the recovery of
money, debt or interest thereon and not where the
subject is primarily for some other relief and the
collection of an amount of money sought therein is
merely incidental thereto, such as by way of
damages;
The claim subject of the action arose from contract,
express or implied, entered into be the decedent in
his lifetime or the liability for which had been
assumed by or is imputable to him (1 REGALADO,
supra at 111).
Death, money claims
In so far as money claims is concerned, and one of the
parties died while the case is pending (death 2 in Death
Diagram), the case will not be dismissed and will proceed up
to the finality of judgement.
NOTE: The finality of judgement is by operation of law.
If death occurs during the pendency of an action for
collection of sum of money, it will proceed up until judgement
but not the execution. The final judgement will be placed in
an estate proceedings.
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Example: If the judgement was made on December 1 and
the plaintiff received the judgement on December 5, the
judgement becomes final and executory when there is no
motion to reconsider, appeal or motion for new trial filed on
December 16. The decision will now be final by operation of
law. You don’t have to wait for the judgement to be recorded
in the judgement book. It is even final as to the court.
Death occurred when judgement became final
If there is death and the judgement has become final and
the action is a money claim, the action stops there. There is
no need to file for a motion for execution. The judgement
which has already attained finality will now be filed with the
probate court or the real estate court for the distribution of
such.
SECTION 21:INDIGENT PARTY
Who is an Indigent?
An indigent party can file a case without the required docket
fees. He is also free from payment of other lawful fees and
stenographic notes. All of these shall be considered as a lien
on any judgement rendered in the case favorable to the
indigent, unless the court provides otherwise.
Requirements to be considered as an indigent: (I-P)
1. Income requirement; the family must not have a
combined income of more than twice the monthly
minimum wage.
2. Property; the property’s fair market value (not
assessed value) must not be more than Php.
300,000
NOTE: Both requisites must concur. Failure to comply
with one will disqualify the person from being an indigent
litigant.
Lien on any judgement
The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any
judgement rendered in the case favorable to the indigent,
unless the court otherwise provides.
Contesting the grant of indigency to a party
While the Rule allows an ex parte application and hearing to
litigate as an indigent, at any time before judgement is
rendered by the trial court, any adverse party may contest
the grant of the authority to a party to litigate as an indigent
(1 RIANO, supra at 241).
NOTE: If the court should determine after hearing that the
party declared as an indigent is in fact a person with
sufficient income or property, the proper docket and other
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CIVIL PROCEDURE REVIEWER
lawful fees shall be assessed and collected by the clerk
of court.
Juridical entity, not an indigent
A juridical entity cannot be considered as an indigent
because only natural persons can apply for indigency (Re:
Query of Mr. Roger C. Prioreschi re exemption from legal
and filing fee of the Good Shepherd Foundation, Inc.,
A.M. No. 09-6-9-SC, August 19, 2009).
The present suit is one for damages under the last class
(actions to recover damages for an injury to person or
property), it having been held that "injury to property" is not
limited to injuries to specific property, but extends to other
wrongs by which personal estate is injured or diminished. To
maliciously cause a party to incur unnecessary expenses, as
charged in this case, is certainly injurious to that party's
property (Aguas v. Llemos, G.R. NO. L-18107, August 30,
1962).
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 (Algura v. City of Naga, GR No.
150135, October 30, 2006).
matter of jurisdiction, but
rather it is a rule of
procedure.
Jurisdiction vs. Venue
JURISDICTION
VENUE
AS TO DEFINITION
Authority of the court to
Place where the case is
hear and determine a
to be heard or tried.
case.
AS TO GOVERNING LAW
Matter of substantive law. Matter of procedural law.
AS TO RELATIONS ESTABLISHED
Cannot be waived.
May be waived.
Fixed by law and cannot May be conferred by the
be conferred by parties.
act or agreement of the
parties.
AS TO DISMISSAL MOTU PROPRIO
Court may dismiss an GR: Court may not
action motu proprio for dismiss an action motu
lack of jurisdiction.
proprio on the ground of
improper venue.
XPN:
1) Actions covered by
the
Rules
on
summary procedure
and small claims
cases.
2) SC has the power to
order a change of
venue to prevent a
miscarriage of justice
(1987
Philippine
Constitution, Art. VIII,
Sec. 5, Par. 4).
SECTION 22:
NOTICE TO THE SOLICITOR GENERAL
The rule is that only the Solicitor General can bring or defend
actions on behalf of the Republic of the Philippines and that
actions filed in the name of the Republic, or its agencies and
instrumentalities, if not initiated by the Solicitor General, will
be summarily dismissed (Cooperative Dev’t Authority v.
Dolefill Agrarian Reform Beneficiaries Coop., GR No.
137489, May 29, 2002).
RULE 4: VENUE
Venue is the place or the geographical area, in which a
court with jurisdiction may hear and determine a case or
the place where the case is to be tried (City of Lapu-Lapu
v. Philippine Economic Zone Authority, G.R. No.
184203, November 26, 2014).
Venue in civil cases vs. Venue in criminal cases
Venue in civil cases
May be waived as it is
intended
to
accord
convenience to the parties
rather than to restrict their
access to the courts.
Venue is procedural, not
substantive, and is not a
Venue in criminal cases
Cannot be waived by the
parties because it is an
essential
element
of
jurisdiction.
Venue is jurisdictional.
Thus, if the information
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was filed in a place where
the offense was not
committed, it may be
quashed for lack of
information.
Rules on venue:
To know the venue of a particular action, determine if it
is personal or real (Riano, 2019).
Residence vs. Domicile
RESIDENCE
Place of abode, whether
permanent or temporary,
of the plaintiff or the
defendant.
DOMICILE
Denotes
a
fixed
permanent residence to
which, when absent, one
has intention of returning.
Basis of venue in personal
actions.
SECTION 1: VENUE OF REAL ACTIONS
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b.
Real actions involve actions affecting title to or
possession of real property, or interest therein. Real
actions shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated (Rule 4,
Section 1, RoC).
Local
Venue depends upon the place where the property or any
portion of the same is situated (Rule 4, Section 1, RoC).
For real actions – where the property is
situated.
2.
The action affects the personal status of the plaintiff;
or
a. Where plaintiff resides.
3.
The action affects any property of the non-resident
defendant located in the Philippines.
a. Where the property or any portion thereof
is situated or found.
Various parcels of land situated in different provinces
Liberal Interpretation of Section 3, Rule 4
Venue is determined by the singularity or plurality of the
transactions:
Giving the plaintiff a choice of venue in actions affecting any
property of a non-resident defendant who is not fund in the
Philippines would well serve the interest of a resident
plaintiff, rather than of a possible absconding non-resident
defendant (Riano, 2019).
(a) Same transaction – venue is in the court of any of
the provinces wherein a parcel of land is situated;
or
(b) Separate and distinct transactions – laid in the
court of the province wherein each parcel of land
is situated.
SECTION 2: VENUE OF PERSONAL ACTIONS
Venue in personal actions is where 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 (Rule 4, Section 2, RoC).
Transitory
Venue must be:
(a) Where the plaintiff or any of the principal plaintiff
resides; or
(b) Where the defendant or any of the principal
defendant resides.
Defendant is a non-resident
Venue is at the election of the plaintiff.
1. Where the plaintiff or any of the principal plaintiff
resides; or
2. Where the non-resident defendant may be found
(Rule 4, Section 1, RoC).
Venue of ordinary civil actions against nonresidents:
Sec. 3, Rule 4 applies when:
1.
Any of the defendants is a non-resident and not
found in the Philippines;
a. For personal actions – where the plaintiff
resides.
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SECTION 4: WHEN THE RULES ON VENUE DO NOT
APPLY
Sec. 4. When Rule not applicable – This Rule shall not
applicable –
1. In those cases where a specific rule or law
provides otherwise; or
2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive
venue thereof.
Requisites of Stipulations on Venue:
Parties may stipulate on the venue as along as the
agreement is
1. In writing;
2. Made before the filing of the action; and
3. Exclusive as to the venue (Rule 4, Section
4(b),RoC)
The parties may agree on a specific venue which could be in
a place where neither of them resides (Universal Robina
Corporation v. Lim, G.R. 154338, October 5, 2007).
Written Stipulations
1. Restrictive or Mandatory – where venue
stipulated upon is restrictive or mandatory, the
complaint is to be filed only in the stipulated
venue
Examples of words with restrictive meanings:
a. Only
b. Solely
c. Exclusively in the court
d. In no other court save
e. Particularly
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CIVIL PROCEDURE REVIEWER
f.
Nowhere else but/except (Riano, 2019).
2. Permissive – parties may file their suits not only
in the place agreed upon but also in the places
fixed by the rules
Examples of permissive stipulations:
a. “The agreed venue for such action is Makati,
Metro Manila, Philippines” (Mangila v.
Court of Appeals, 387 SCRA 162, 174-175)
b. “In case of litigation hereunder, venue shall
be in the City Court or Court of First Instance
of Manila as the case may be for
determination of any and all questions
arising thereunder” (Philippine Bank of
Communications v. Trazo, 500 SCRA 242,
247-248)
c. “It is hereby agreed that in case of
foreclosure of this mortgage under Act 3135,
as amended, and Presidential Decree No.
385, the auction sale shall be held at the
capital of the province, if the property is
within the territorial jurisdiction of the
province concerned, or shall be held in the
city, if the property is within the territorial
jurisdiction of the city concerned” (Langkaan
Realty Development, Inc. v. United
Coconut Planters Bank, 347 SCRA 542,
555-556)
d. “All court litigation procedures shall be
conducted in the appropriate courts of
Valenzuela City, Metro Manila” (Auction in
Malinta, Inc. v. Luyaben, 515 SCRA 569,
575; Riano, 2019)
Exclusive as to venue
It must be emphasized that the mere stipulation on the
venue of an action, however, is not enough to preclude
parties from bringing a case in other venues. The parties
must be able to show that such stipulation is exclusive.
In the absence of qualifying or restrictive words, the
stipulation should be deemed as merely an agreement on
an additional forum, not as limiting venue to the specified
place (Spouses Lantin v. Lantion, 499 SCRA 718, 722;
See also Ley Construction and Development
Corporation v. Sedano, G.R. No. 222711, August 23,
2017).
Example: If the plaintiff, in an action for damages, resides
in Quezon City while the defendant resides in Makati City,
and the agreed venue is Pasay City which by the terms of
the agreement is not exclusive, the venue of the action
may be Quezon City, Makati City, or Pasay City, at the
election of the plaintiff. Pasay City would simply be
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considered as an additional, not an exclusive venue
(Riano, 2019).
A restrictive stipulation on venue is not binding when
the validity of the contract is assailed
A complaint directly assailing the validity of the written
instrument itself should not be bound by the exclusive venue
stipulation contained therein and should be filed in
accordance with the general rules on venue. To be sure, it
would be inherently consistent for a complaint of this nature
to recognize the exclusive venue stipulation when it, in fact,
precisely assails the validity of the instrument in which such
stipulation is contained (Briones v. CA, G.R. No. 204444,
January 14, 2015).
Complementary-Contracts-Construed-Together Rule
The Complementary-Contracts-Construed-Together Rule
mandates that the provisions of an accessory contract must
be read in its entirety and together with the principal contract
between the parties (Riano, 2019).
ILLUSTRATIVE CASE:
Facts: Petitioner filed for a collection of deficiency with the
RTC of Manila alleging that the respondents obtained a loan
and executed a continuing surety agreement for all loans that
may be extended in the future. Petitioner granted a renewal
of the loan as evidenced by a promissory note which
contained a stipulation that the venue for any legal action that
may arise from the promissory note shall be in Makati City.
Respondents failed to pay upon maturity and thus petitioner
foreclosed the real estate mortgage executed by
respondents. Respondents moved to dismiss the complaint
on the ground of improper venue. On appeal, the CA ruled
that the debt of respondent was based on the promissory
note which provided an exclusionary stipulation on venue.
Hence this Petition for Review under Rule 45 of the Rules of
Court.
Held: The Supreme Court held that in enforcing a surety
contract, the "complementary-contracts-construed-together"
doctrine finds application. According to this principle, an
accessory contract must be read in its entirety and together
with the principal agreement. This principle is used in
construing contractual stipulations in order to arrive at their
true meaning; certain stipulations cannot be segregated and
then made to control. This no-segregation principle is based
on Article 1374 of the Civil Code. Incapable of standing by
itself, the SA can be enforced only in conjunction with the
PN. The latter documents the debt that is sought to be
collected in the action against the sureties (Philippine Bank
of Communications v. Lim, G.R. No. 158138, April 12,
2005).
Dismissal based on improper venue
Improper venue is not one of the grounds wherein the
court may dismiss an action motu proprio on the basis of
the pleadings (Universal Robina Corporation v. Lim,
G.R. 154338, October 5, 2007).
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CIVIL PROCEDURE REVIEWER
Hence, if, in a case filed with the RTC, the defendant files
a motion to dismiss based on lack of jurisdiction over the
subject matter and the court instead dismisses the action
based on improper venue, the court would be acting
erroneously because the act would tantamount to a motu
proprio dismissal based on improper venue (Riano,
2019).
The court may, however, effect a motu proprio dismissal
of the complaint based on improper venue in an action
covered by the rules on summary procedure. In this type
of action, the court may motu proprio dismiss a case,
from:
1. An examination of the allegations in the
complaint, and;
2. Such evidence as may be attached thereto, on
any of the grounds apparent therefrom for the
dismissal of a civil action
The dismissal may be made outright, which means that
the court may do so without need for waiting for the filing
of a motion to dismiss (Section 4, Revised Rules on
Summary Procedure).
NOTE: Under the new rules, Rule 16 has been deleted so
when there is improper venue, the remedy is NOT a
Motion to Dismiss but instead you should file an answer
and raise it as an affirmative defense.
Subject Matters covered by Summary Procedure in
Civil cases:
1.
2.
Procedure in civil cases:
1.
2.
3.
4.
Supreme Court has authority over venue
To avoid a miscarriage of justice, the Supreme Court may
order a change of venue (Sec. 5[4], Art. VIII,
Constitution of the Philippines).
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1: UNIFORM PROCEDURE
Rules implemented and enforced by the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts. It is not enforced by RTC. The purpose of the rules
is to expedite and shorten proceedings. Summary
Procedure is different from Special Proceedings.
A Writ of Amparo is a special proceeding. The Rules on
Special Proceeding are different from those on Summary
Procedure. Hence, the rules of Summary Procedure will
not apply.
Furthermore, the RTC cannot implement or resort to the
use of rules on summary procedure because the rules in
summary procedure can only be administered by MTC,
MTCC, MeTC (De Lima v Gatdula, G.R. No. 204528,
February 19, 2013).
REVISED RULES ON SUMMARY PROCEDURE
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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).
All other civil cases, except probate proceedings,
where the total amount of the plaintiff's claim does
not exceed ten thousand pesos (P10,000.00),
exclusive of interest and costs (Revised Rules on
Summary Procedure, Section 1a).
5.
The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and crossclaims' pleaded in the answer, and the answers
thereto (Section 3a).
All pleadings must be verified (Section 3b).
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 (Section 5).
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 (Section 6).
Preliminary conference; appearance of parties. Not
later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held.
NOTE: 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
(Section 7).
6.
7.
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 (Section 8).
Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties
shall submit the affidavits of their witnesses and
other evidence on the factual issues defined in the
order, together with their position papers setting
forth the law and the facts relied upon by them
(Section 9).
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 (Section 10).
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CIVIL PROCEDURE REVIEWER
(Section 6, Rules on
Summary Procedure)
NOTE: Prohibited Pleadings (Section 19, Revised Rules
on Summary Procedure)
Note: You are limited by
the allegations on the
complaint. The judge will
only check whether a
cause of action exists.
The relief granted is
based on the allegations
of the complaint. A higher
relief cannot be given.
However, a lower relief
may
be
granted,
especially at the attorney’
s fee. A different relief
cannot be awarded.
(Chinatrust v. Turner)
1. Motion to dismiss the complaint or to quash the
complaint or information
XPN: On the ground of lack of jurisdiction over the subject
matter.
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
XPN: An MR is allowed only against an interlocutory
order. (Lucas Case)
NOTE: The remedy is an ordinary appeal after the final
judgement.
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaints;
12. Interventions.
Appeal
Allowed to appeal to the
RTC.
Note: The remedy
Certiorari, because
the judgement is
immediately final
and executory.
The judge will determine and indicate in the summons the
rules that shall apply in the case.
SUMMARY PROCEDURE
Q: Jason hit Maria with his bike, and the latter incurred
Php150,000 in hospital bills. Is it covered by small claims?
A: No, It is covered by the rules on Summary Procedure.
It is not covered by Small Claims because the action is
not purely a collection suit. It is tort, therefore, MTC shall
apply the rules on Summary Procedure.
If no
Answer
was
filed:
SUMMARY
PROCEDURE
SMALL CLAIMS
1. The Judge can motu
proprio decide on the
case or
2. A motion to render
judgement based on the
complaint must be filed.
Judge can still
decide on the case
within the day.
ORDINARY CIVIL ACTION
Complaint then summons
will be served.
Q: Eve sued Aisa for the collection of Php 200,000.00. Is
that covered by the summary procedure?
A: No, it is covered by Small Claims.
No appeal is given,
it is prohibited
(Section 16, A.M.
No. 08-8-7-SC)
Answer must be filed within
10 days.
Answer must be filed within
either 15 days, 30 days, 60
days depending on how
Summons is served.
Note: Motion for extension
of time is prohibited. (Sec
19, Revised Rules on
Summary Procedure)
Note: Motion for extension of
time is allowed.
Reply is not allowed.
If there is an Answer, you
may or may not file a Reply.
Note: Once an Answer has
been filed, a preliminary
conference can be set. It is
akin to pre-trial.
Note: After the issues have
been joined, there will be a
preliminary conference. And
then you will have pre-trial
and then trial and then
judgment.
Preliminary Conference
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CIVIL PROCEDURE REVIEWER
Commencement of the claim
Occurs once the Answer is filed. This is the part of the
proceedings where Issues and stipulations are laid down.
Agreement to a stipulation leads to an established fact,
which eliminates the need of presenting evidence.
The parties must submit their respective position papers
within 10 days from receipt of preliminary conference
order.
It is not a trial. However, the court may ask for clarificatory
proceedings (Bayubay v CA, G.R. No. 105866 July 6,
1993).
Clarificatory Proceedings
The judge may ask for a clarificatory proceeding, where
certain factual matters are clarified. Clarificatory
proceedings are not meant to try the case nor be resorted
to delay the judgment.
REVISED RULES ON SMALL CLAIMS
Jurisdiction
1. Small claims cases are cognizable by the Metropolitan
Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts, where the value of the claim does not exceed
the jurisdictional amount of P400,000 for the MeTCs and
P300,000 for the MTCCs, MTCs, and MCTCs , exclusive
of interest and costs (A.M. No. 08-8-7-SC, April 1, 2019).
The claim must be purely civil in nature and is solely for
the payment or reimbursements of sum of money. Hence,
a claim seeking for a judgment to compel the defendant
to perform a specific act is NOT covered by the rules on
small claims.
Coverage
To be covered by the Revised Rules on Small Claims
cases, the claim or demand should be for money owed
under any of the following:
1. Contract of lease
2. Contract of loan
3. Contract of services
4. Contract of sale
5. Contract of mortgage
6. Claim for liquidated damages arising from the
contract
7. Claim for the enforcement of a Barangay
amicable settlement or an arbitration award
covered by this rule
Note: Recovery of unliquidated damages, even if arising
from a contract, cannot be brought under the rules on
small claims (Section 5, A.M. No. 08-8-7-SC).
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Small claims cases are commenced by filling up and filing a
form called a Statement of Claim. NO formal pleading, other
than the statement of claims, is necessary to initiate a small
claims action.
The Statement of Claim should be verified and accompanied
by a certification against forum shopping.
The plaintiff is required to attach, to the Statement of Claim,
the affidavit of his witnesses and other evidence to support
his claim. If his claim is based on an actionable document,
he is also required to attach two duly certified copies of such
document. This is a mandatory requirement. Evidence not
attached shall not be allowed during the hearing, except
when plaintiff can show good cause for the submission of
additional evidence. In addition, the non-submission of the
required affidavits will cause the immediate dismissal of the
claim (Section 6, A.M. No. 08-8-7-SC).
The rule does not prohibit the joinder of causes of action.
Separate claims arising from the distinct causes of action
may be joined in a single statement of claim provided the
total amount does not exceed the jurisdictional amount of
P400,000 for the MeTCs and P300,000 for the MTCCs,
MTCs, and MCTCs (Section 8, A.M. No. 08-8-7-SC).
No attorney shall appear on behalf of or represent a party at
the hearing, unless the attorney is the plaintiff or defendant.
If the court determines that a party needs assistance, the
court may allow another individual, who is not an attorney, to
assist such party with the latter’s consent.
Venue
The statement of Claims shall be filed in the place following
the rules on venue in Rule 4 of the Rules of Court. This is
because the rules of Civil Procedure apply suppletory to
small claims cases.
However, if the plaintiff is engaged in the business of lending,
banking and similar activities, and has a branch within the
municipality or city where the defendant resides, the
Statement of claim/s shall be filed where the branch is
located (Section 7, A.M. No. 08-8-7-SC).
Response to Statement of claims
The defendant shall file with the court and serve on the
plaintiff a duly accomplished and verified Response within
a non-extendible period of ten (10) days from receipt of
summons (Section 13, A.M. No. 08-8-7-SC).
Prohibited Pleadings and Motions
1. Motion to dismiss the Statement of Claim/s;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
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5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement
10. Reply and rejoinder;
11. Third-party complaints; and
12. Interventions (Section 16, A.M. No. 08-8-7-SC).
Decision/Execution
After the hearing, the court shall render its decision within
24 hours from the termination of the hearing.
The decision shall be final, executory and
unappealable.
5.
A small claims action is commenced by filing with
the court an accomplished and verified Statement of
Claim in duplicate, accompanied by a Certification
Against Forum Shopping, Splitting a Single Cause
of Action, and Multiplicity of Suits, and two duly
certified photocopies of the actionable document/s
subject of the claim, as well as the affidavits of
witnesses and other evidence to support the claim.
NOTE: No evidence shall be allowed during the hearing
which was not attached to or submitted together with the
Statement of Claim, unless good cause is shown for the
admission of additional evidence (RCBC Bankard Services
Corp., Oracion, G.R. 223274, June 19, 2019).
Comparison of procedure: Small claims vs. Summary
Procedure vs. Ordinary claims
Hence, the decision shall immediately be entered by the
Clerk of Court in the court docket for civil cases and a
copy thereof shall be served on the parties (Section 24,
A.M. No. 08-8-7-SC).
Doctrines
1.
A motion for reconsideration is only a prohibited
pleading if it is against a final order. If it is against an
interlocutory order, a motion for reconsideration is
allowed (Lucas v. Fabros, A.M. No. MTJ-99-1226,
Jan. 31, 2000).
2.
A motion to dismiss on the ground of lack of
jurisdiction over the subject matter is an exception
to the rule on prohibited pleadings (Bongato v.
Malvar, G.R. No. 141614, Aug. 14, 2002.
3.
Where the trial court abuses its discretion by
indefinitely suspending summary proceedings
involving ejectment cases, a petition for certiorari
may be entertained by the proper court to correct
the blunder. In the interest of justice and in view of
the procedural void on the subject, an appeal may
be treated as a petition for certiorari for this purpose
and only in this instance, pro hac vice (Go v. CA,
G.R. No. 128954, October 8, 1992).
4.
The determination of issues at the preliminary
conference bars the consideration of other
questions on appeal. Raising a new factual issue on
appeal would be unfair to the adverse party, who
had no opportunity to present evidence against it
(Chinatrust vs. Turner, G.R. No. 191458, July 3,
2017).
RULE 6: KINDS OF PLEADINGS
SECTION 1: PLEADINGS DEFINED
Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court
for appropriate judgment.
Pleadings
Pleadings are documents a party submits in Court. They
are supposed to contain the cause of action or the basis
of a party’s claims or defenses. A party submitting a
pleading should divide the dispute and indicate the
number of its action or defense.
Test to determine whether a complaint is sufficient:
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The complaint will be deemed sufficient if the other party
will be able to answer and prepare for trial.
A motion to dismiss is not a pleading because it does not
state a party’s defense. It is not a responsive pleading.
Actionable Document
An actionable document is the document on which your
claim or defense is based. A document becomes an
actionable document if it sets forth in the pleading the
pertinent provisions of such document and the original or
a copy thereof shall be attached to the pleading as an
exhibit which shall form part of the pleading (Rule 8,
Section 2, RoC).
Q: When will you file a reply?
A: If the answer is founded on an actionable document, a
reply may be filed. A party may only file a reply if such
party wants to contest the due execution and authenticity
of the actionable document. Hence, a reply is not
mandatory.
Example: The party is claiming that the actionable
document is a forgery.
A complaint must make a direct statement of the
ultimate facts
The basic requirement under the rules of procedure is that a
complaint must make a plain, concise, and direct statement
of the ultimate facts on which the plaintiff relies for his claim.
Ultimate facts mean the important and substantial facts
which either directly form the basis of the plaintiff’s primary
right and duty or directly make up the wrongful acts or
omissions of the defendant (Victorina V. Brewmaster
International, G.R. No. 182779, August 23, 2010).
NOTE: The Revised Rules of Procedure is evidentiary in
nature. A party should attach all pieces of evidence when
filing a complaint.
Judgment on the pleadings proper based on MOA
A Memorandum of Agreement (MOA) was executed by
Pryce and Mongao. According to Pryce, he will comply with
his obligation to Mongao only upon the execution of a Deed
of Absolute Sale, which according to Mongao, was not
included in the terms and conditions of the MOA.
Pryce failed to perform his contractual obligation, prompting
Mongao to rescind the contract. In filing his answer, Pryce
admitted that he executed the MOA. Since the MOA clearly
states that there is no need for a Deed of Absolute Sale,
there is no triable issue in this case. Hence, judgment on the
pleadings is the proper remedy (Mongao v Pryce
Properties, G.R. No. 156474, August 16, 2005).
SECTION 2: PLEADINGS ALLOWED
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The claims of a party are asserted in a:
1. Complaint
2. Counterclaim
3. Cross-claim
4. Third (fourth, etc.)- party complaint
5. Complaint- in- intervention
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him or her.
An answer may be responded to by a reply only if the
defending party attaches an actionable document to the
answer. (Section 2, Rule 6, RoC).
SECTION 3: COMPLAINT
The complaint is the pleading alleging the plaintiff’s or
claiming party’s cause or causes of action. The names and
residence s of the plaintiff and defendant must be stated in
the complaint (Section 3, Rule 6, RoC).
Names and residences of the plaintiff and defendant
must be alleged in the complaint for purposes of
summons
Q: Can summons be served on the plaintiff?
A: NO. However, the residence of the plaintiff must still be
alleged for purposes of determining the proper venue,
especially when it comes to personal actions.
Q: Why should the defendant’s residence be alleged in
complaint?
A: Since the complainant does not know who the lawyer of
the defendant will be, summons and other court processes
addressed to the defendant may be served directly at the
address of the defendant.
SECTION 4: ANSWER
An answer is a pleading in which a defending party sets
forth his or her defenses (Section 4, Rule 6, RoC).
Q: Why is it addressed as “defending party” and not
“defendant?”
A: Because a plaintiff can be a defending party in a
counterclaim- especially in a permissive counterclaim.
SECTION 5: DEFENSES
Defenses may either be negative or affirmative.
1. A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
complaint essential to his or her cause or causes of
action.
2. An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material
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allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him or her. The
affirmative defenses include fraud, statute of limitations,
payment, illegality, statue of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter
by way of confession and avoidance.
Affirmative defenses may also include grounds for the
dismissal of a complaint, specifically, that the court has no
jurisdiction over the subject matter, that there is another
action pending between the same parties for the same
cause, or that the action is barred by a prior judgment
(Section 5, Rule 6, RoC).
Other grounds that may be used as an affirmative
defense:
1. Unenforceable or illegal contract
2. A contract that has been prescribed or discharged by
reason of bankruptcy, confession, and avoidance.
3. lack of jurisdiction over the subject matter
4. litis pendentia
5. res judicata
Rule 16 or motion to dismiss has been deleted
The grounds stated in Section 5 can be raised as an
affirmative defense in the answer, which means that if there
is a complaint, the defending party should NOT file a motion
to dismiss if he wants to raise an affirmative defense.
Instead, he should file an answer and use the grounds stated
under Section 5 as his affirmative defense.
The only 4 grounds wherein a motion to dismiss may
be filed:
1. lack of jurisdiction over the subject matter;
2. litis pendentia; and
3. res judicata
4. presciption
Other than that, all the grounds stated in Rule 16 will have to
be raised through an affirmative defense.
Parts of an answer:
1. Admissions;
2. Denials;
3. Defenses;
4. Counterclaim; and
5. Prayer.
Normally, a party filing an answer will state his admissions
first.
Example: Defendant admits paragraph 1 and 2 of the
complaint.
The admissions will be followed by the denials.
1. Specific denial
I specifically deny the allegations contained under paragraph
3 of the complaint. The truth of the matter being.. *reason*
2. Lack of knowledge
I specifically deny the allegations under paragraph 3 of the
complaint for lack of knowledge sufficient to form a belief as
to the truth or falsity of the matter.
The third part of an answer will be the negative or affirmative
defenses. This will be followed by the counterclaim which
can either be compulsory or permissive. Lastly, the party
shall state its prayer.
NOTE: There is no such thing as a special affirmative
defense.
Q: Pedro admitted all the allegations in the complaint
filed by Juan. However, Pedro was not properly
summoned by the court. Can Juan be barred from
recovering from Pedro despite of Pedro’s admission to
all the allegations in the complaint?
A: YES. Juan cannot recover from Pedro because Pedro
was improperly summoned by the court. Hence, the court did
not acquire jurisdiction over Pedro. Pedro can raise the
court’s lack of jurisdiction as an affirmative defense.
SECTION 6: COUNTERCLAIM;
A counterclaim is any claim which a defending party may
have against an opposing party (Section 6, Rule 6, RoC).
Example: Plaintiff and defendant. Defendant files a claim
against the plaintiff. If it arises from the same transaction
subject of the controversy, it becomes a compulsory
counterclaim.
Two kinds of counterclaim:
1. Permissive counterclaim
2. Compulsory counterclaim
To determine whether a counterclaim is compulsory
or not, the Court has devised the following tests:
(a) Are the issues of fact and law raised by the claim and
by 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? A positive answer to all four questions
would indicate that the counterclaim is compulsory (GSIS
A denial can either be a:
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v Heirs of Caballero, G.R. No. 158090, October 4,
2010).
causes of action. (Cojuangco V. Villegas, G.R. No.
76838, April 17, 1990).
Compulsory Counterclaim v Permissive
Counterclaim
Q: Pedro filed a case for collection of sum of money
against Juan. In Juan’s answer, as a form of defense, he
alleged that he has already paid his obligation and he
even attached a receipt as evidence.
COMPULSORY
PERMISSIVE
COUNTERCLAIM
COUNTERCLAIM
AS TO FILING OF AN ANSWER
An answer is not needed An answer is needed.
because it is deemed Failure of the plaintiff to
controverted.
answer can place him in
default since a permissive
counterclaim
is
considered an initiatory
pleading- and because a
permissive counterclaim
is an initiatory pleading,
the prescribed filing fees
should
be
paid.
(Buncayao
V.
Fort
Ilocandia)
AS TO EXECUTION OF CERTIFICATE OF FORUM
SHOPPING
A
compulsory Being
an
initiatory
counterclaim does not pleading, a permissive
require the execution of a counterclaim requires for
certificate of non- forum an
execution
of
a
shopping.
certificate of non- forum
shopping.
AS TO THE NATURE
When
a
compulsory A
permissive
counterclaim is not raised counterclaim
is
not
in the answer, it is mandatory, it can be the
deemed barred and it subject
of
another
cannot be a subject of complaint. It is based on a
another independent suit. separate cause of action.
Illustration
1. Fort Ilocandia wanted: (1) the return of the P400,000;
and (2) for the premises to be vacated. The counterclaim
for the surrender of the premises is not necessarily
connected with the rescission of the contract. It should
have been filed as a separate action and if they wanted to
raise it by way of permissive counterclaim, they should
have filed the necessary filing fees- which they did not.
Hence, the court has no jurisdiction to rule and decide on
the permissive counterclaim (Buncayao v. Fort
Ilocandia Property, G.R. No. 170483, April 19, 2010).
Possession in the concept of an owner
A person in possession of a property in the concept of an
owner should raise by way of compulsory counterclaim
his reimbursement for the improvements he introduced as
a possessor in good faith. His claim for reimbursement will
necessarily be included in his defense. There is no need
to file a separate action as this will only result to splitting
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Thereafter, Juan raised a compulsory counterclaim
which provides that because of the unfounded suit, he
was constrained to engage the services of a counsel
with a fee of P1,000,000. In addition, Juan alleged that he
suffered mental anguish and sleepless nights. Such
moral damages amounted to P500,000. Exemplary
damages amounting to P100,000 were also assessed.
Based on that complaint, is it compulsory or not?
A: The complaint is compulsory. (use the 4- fold test
provided for in GSIS V. Caballero)
1. Are the issues of fact and law raised by the complaint and
counterclaim largely the same?
YES. The main issue is whether the obligation has been paid
or not.
2. Would res judicata bar a subsequent suit on defendant's
claims, absent the compulsory counterclaim rule?
YES. Juan’s counterclaim is an act or a cause of action
necessary connected to the complainant’s cause of action.
3. Will substantially the same evidence support or refute
plaintiff's claim as well as the defendant's counterclaim?
YES.
4. Is there any logical connection between the claim and the
counterclaim?
YES. Because Juan’s counterclaim arose from the filing of
that baseless suit.
Q: Rodrigo filed a 1 million collection suit against
Leni. In her answer, Leni alleged that she already paid
and further claimed that they should do an off-setting
of their respective claims. Based on the complaint, is
it compulsory or not?
A: NO. There is no logical connection between the claim
and the counterclaim. Hence, this is a permissive
counterclaim and can be the subject of a different
complaint.
NOTE: Do not forget that if the case or the suit is before
the MTC, the counterclaim should not exceed the
jurisdictional amount. Otherwise, if a party insist for the
court to make a ruling on it, then the excess is deemed
waived because the court can only grant you what is
within its jurisdictional threshold.
In order for the excess not to be deemed waived, a party
can make a reservation to recover the excess in another
complaint to be filed before another court.
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SECTION 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 party’s
claim and does not require for its adjudication the
presence of third parties whom the court cannot acquire
jurisdiction. 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. A compulsory
counterclaim not raised in the same action is barred,
unless otherwise allowed by these Rules (Rule 6,
Section 7, RoC).
A counterclaim is not compulsory if it exceeds the
jurisdictional threshold of the Court. However, you may
raise the counterclaim only to have the complaint
dismissed because after you can just file the excess
before the appropriate court.
In Calo V. Ajax, defendant has a bigger credit than that of
the plaintiff’s claim. The defendant will raise only the claim
to have the case dismissed- but he cannot ask the court
to grant an affirmative defense on the excess amount
since that is already beyond the jurisdiction of the Court
(Calo v Ajax, G.R. No. L-22485, March 13, 1968).
SECTION 8: 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 cover all or part of the original
claim (Rule 6, Section 8, RoC).
There must be more than 2 parties in a cross-claim
If the cross-claim is permissive, then the other defendant will
have to answer the cross-claimant. He will have to defend
himself also against the cross-claimant.
Example: Harry sued Sal and Mocha- solidary liability. The
judgment can be enforced against either Sal or Mocha.
When Sal files an answer, he will raise a counterclaim
against Harry and in the possibility that Sal will be adjudged
liable, then Sal should do his cross-claim against Mochawhich means Mocha should be held liable for the amount she
is supposed to contribute because as between Mocha and
Sal, the obligation shall be joint.
SECTION 9: COUNTER-COUNTERCLAIMS AND
COUNTER-CROSS CLAIMS
A counterclaim may be asserted against an original counterclaimant.
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A cross-claim may also be filed against an original crossclaimant (Rule 6, Section 9, RoC).
SECTION 10: REPLY
All 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.
However, the plaintiff may file a reply only if the defending
party attaches an actionable document to his or her answer.
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
in, or relating to such actionable document.
In the event of an actionable document attached to the reply,
the defendant may file a rejoinder if the same is based solely
on an actionable document (Rule 6, Section 10, RoC).
NOTE: A party may only file a reply if the action is based on
an actionable document. When a complaint and an answer
is filed, the matters are deemed controverted. Hence, there
is no need to file a reply.
If a party’s claims and defenses are not based on an
actionable document, there is no need to file for a
reply
Q: Juan got hit by a car. Since there is no document
evidencing that Juan got hit by a car, Juan’s action is
not based on an actionable document and his defense is
premised on negligence. Is there a need to file for a
reply?
A: NO. There is no need to file a reply because the claim or
defense is not based on an actionable document. The
pleading stops and all matters are deemed controverted.
Q: Pedro files a complaint. The reply is based on an
actionable document, can Pedro file another pleading to
answer if he wants to contest the due execution that was
raised in the reply? If so, what is the title of the pleading?
A: YES. The pleading is called a REJOINDER.
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 or her opponent’s claim.
The third (fourth, etc.)- party complaint shall be denied
admission, and the court shall require the defendant to
institute a separate action, where: (a) the third (fourth, etc.)party defendant cannot be located within thirty (30) calendar
days from the grant of such leave; (b) matters extraneous to
the issue in the principal case are raised; or (c) the effect
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would be to introduce a new and separate controversy in
the action (Rule 6, Section 11, RoC).
Third (fourth, etc.)- party complaint
When a third party complaint is filed, the third-party
complaint must be necessarily connected with the original
action. It is not something that is foreign. A new party is
brought for purposes of contribution or indemnity.
A third party complaint may not be filed if the purpose is
other than CISO because that will result to introducing an
extraneous matter which will only delay the resolution of
the original action.
Filing a motion for a third party complaint is not a right. It
is subject to approval of the Court (Insurance vs. Castro,
G.R. No. 195728, April 19, 2016).
“Leave of court” means that permission should be asked
first. When a party files a third party complaint, such party
files a motion to admit third party complaint and attaches
it to his proposed third party complaint. Since he is asking
permission from the Court, the third party complaint will
not come to existence if the Court elects to reject it. If it is
granted, summons will be served on the third party
defendant because he is bringing in a new person into the
case.
Q: Santino filed a collection case against Enrique.
Enrique now would want to implead Malena because
Malena is liable by way of contribution. This is a case
of personal action. Santino lives in Manila while
Enrique lives in Makati. The case was filed in Manila
because Santino elected to file it in Manila. Malena
lives in Zamboanga. Can Malena now file an answer
with affirmative defense that venue was improperly
laid since she lives in Zamboanga and yet the case
was filed in Manila and the third party plaintiff lives in
Makati?
If you were the judge, would you grant the affirmative
defense of venue improperly laid?
A: NO. Malena’s case is merely an auxiliary proceeding.
Being an auxiliary proceeding, it is therefore dependent on
the venue of the original action.
Q: What if the total amount is 1 million but the third party
defendant is only asking for the contribution of
P300,000, does the court have jurisdiction over the third
party complaint?
A: YES. Because a third party complaint is merely an
auxiliary proceeding which is dependent on the main action.
When will the court grant the motion for a third party
complaint? C- I- S- O
1. Contribution
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2. Indemnification
With respect to the opponent’s claim- here, the third party
complaint should have a relation to the original complaint
According to the new rules, a third party complaint will be
denied if it introduces a new and separate matter since it
will only delay the proceeding.
3. Subrogation
When a third party defendant cannot be located
(summons were not served) the court will disallow the
third party complaint without prejudice to the third party
defendant filing a separate action.
Example: Koko and Joy borrowed 1 million from Ping.
Ping only sued Koko. Koko wants to bring the other surety
(Joy) because she wants to recover the contribution.
Since this is a third party complaint, such complaint is
considered as an initiatory pleading and because it is an
initiatory pleading, the third party defendant must pay the
filing fee upon approval by the Court of the third party
complaint.
Since Koko is bringing in another party, summons will
have to be issued against the third party defendant and if
the court cannot locate the whereabouts of the defendant
30 calendar days from the time the motion to admit third
party complaint, then the court will withdraw and just allow
the filing of it elsewhere so as not to delay the proceedings
on the main complaint.
4. Other relief, in respect of his or her opponent’s
claim.
NOTE: When you file a third party complaint, the third
party complaint need not be based on the same theory as
that in the main complaint. It can be a different theory
altogether.
The main complaint relates to a contract of carriage, the
third party complaint which was instituted by the
defendant was based on torts so it need not be the same
theory as that of the first (Philtranco Service
Enterprises v. CA, G.R. No. 161909, April 25, 2012).
Requisites for a third party action
1. That the party to be impleaded is not yet a party to the
action.
2. The claim against the third party defendant must belong to
the original defendant.
3. There should be a necessary connection between the
claim of the defendant against the third party defendant and
it is a relation with a claim of the plaintiff.
NOTE: Even if the third party complaint is instituted against
someone who is not a party to the complaint, the very third
party complaint must arise from the original complaint.
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Extraneous matters should not be introduced in a
third- party complaint
Q: Jhemerlyn filed a case for contract of carriage against
Cong, a driver. Cong filed a third party complaint against
Ivana since Ivana borrowed money from Cong. Will the
third- party complaint prosper?
A: NO. The third- party complaint should be DENIED. It
should be in relation to the original complaint. Here, an
extraneous matter was introduced.
SECTION 12: BRINGING NEW PARTIES
When the presence of parties other than those to the original
action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court
shall order them to be brought in as defendants, if jurisdiction
over them can be obtained (Rule 6, Section 12, RoC).
SECTION 13: ANSWER TO THIRD (FOURTH, ETC.)PARTY COMPLAINT
A third (fourth, etc.)- party defendant may allege in his or her
answer or his or her defenses, counterclaims or crossclaims, including such defenses that the third (fourth, etc.)party plaintiff may have against the original plaintiff’s claim.
In proper cases, he or she may also assert a counterclaim
against the original plaintiff in respect of the latter’s claim
against the third- party complaint (Rule 6, Section 13, RoC).
RULE 7: PARTS AND CONTENTS OF A PLEADING
Parts of a Pleading
1. Caption;
2. Body:
a. Paragraphs
b. Heading
c. Relief
d. Date;
3. Signature and address;
4. Verification; and
5. Certification against forum shopping
SECTION 1: CAPTION
The caption contains the following:
1. Name of the court;
2. Title of the action; and
3. Docket number if assigned.
NOTE: The title of the action indicates the names of the
parties. They shall all be named in the original complaint or
petition; but in subsequent pleading, it shall be sufficient if
the name of the first party on each side be stated with an
appropriate indication when there are other parties (Rule 7,
Section 1, RoC).
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SECTION 2: BODY
The body sets forth:
1. Its designation;
2. The allegations of the party’s claim or defenses;
3. The relief prayed for; and
The date of the pleading (Rule 7, Section 2, RoC).
SECTION 3: SIGNATURE AND ADDRESS
Every pleading and other written submissions to the court
must be signed by the party or counsel representing him
or her.
The signature of counsel constitutes a certificate by
him or her that:
1.
2.
he or she has read the pleading and document; and
that to the best of his or her knowledge, information,
and belief, formed after an inquiry reasonable under
the circumstances:
a. It is not being presented for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation;
b. The claims, defenses, and other legal
contentions are warranted by existing law
or jurisprudence, or by a non-frivolous
argument for extending, modifying, or
reversing existing jurisprudence;
c. The factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after
availment of the modes of discovery under
these rules; and
d. The denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonable based on
belief or a lack of information.
In case the court finds the counsel in violation of Rule
7:
The court may impose an appropriate sanction or refer
such violation to the proper office for disciplinary action,
on any attorney, law firm, or party that violated the rule, or
is responsible for the violation.
Sanction shall include, but not limited to:
1. Non-monetary directive or sanction;
2. An order to pay a penalty in court; or
3. If imposed on motion and warranted for effective
deference, an order directing payment to the
movant of part or all the reasonable attorney’s
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CIVIL PROCEDURE REVIEWER
fees and other expenses directly resulting from
the violation, including attorney’s fees for the filing
of the motion for sanction.
3. Lacks a proper verification
An unsigned pleading is deemed as not filed at all.
GR: A law firm shall be held jointly and severally liable for
a violation committed by its partner, associate, or
employee.
XPN: When exceptional circumstances exist.
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 (Sameer Overseas
Placement Agency v. Santos, G.R. No. 152579, August 4,
2009).
NOTE: It is the duty of the counsel to verify the
truthfulness of the client’s pleading and other written
submission. Otherwise, the counsel may be held
personally liable.
Where there is an absence of verification in a pleading, the
remedy is to file a motion to have such pleading be
verified by the pleader (Quimpo v. de la Victoria, G.R. No.
L-31822, July 31, 1972).
SECTION 4: VERIFICATION
SECTION 5: CERTIFICATION AGAINST FORUM
SHOPPING
GR: Pleadings need not be under oath or verified.
XPN: But all pleadings submitted under Rules on
Summary Procedure must be verified.
How pleadings are verified:
It is verified by an affidavit of an affiant duly authorized to
sign said verification.
The affiant may either be:
1. The counsel; or
2. The party-pleader
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary’s certificate or a special
power of attorney, should be attached to the pleading, and
shall allege the following attestations:
1.
2.
3.
The allegations in the pleading are true and correct
based on his or her personal knowledge, or based
on authentic documents;
The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the cost
of litigation; and
The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
NOTE: If it is a juridical entity that is supposed to verify, it
shall execute a board resolution empowering a
representative to execute the required verification.
Significance of the signature of the affiant
It shall serve as a certification of the truthfulness of the
allegations in the pleading.
Unsigned pleading
A pleading is treated as an unsigned pleading if it is required
to be verified that contains a verification:
1. Based on “information and belief”; or
2. Upon “knowledge, information and belief”; or
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It is an act of a party in which he repeatedly avails himself of
several judicial remedies in different courts, simultaneously
or successively, all substantially founded on the same
transaction 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 (Chua
v. Metropolitan Bank & Trust Company, G.R. No. 182311,
August 19, 2009).
Elements of forum shopping:
1.
2.
3.
Identity of parties, or at least such parties
representing the same interests in both actions;
Identity of rights asserted and reliefs prayed for, the
relief being founded on the same facts; and
The identity of 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 (Buan
v. Lopez, G.R. No. 75349, October 13, 1986).
Who executes:
1. Indispensable Party
2. Necessary Party
3. If a misjoined party executes, no problem.
Execution of certification against forum shopping
GR: It must be the party-pleader, not the counsel, who shall
sign the certificate of non-forum shopping.
XPN: If, however, for reasonable or justifiable reasons, the
party-pleader is unable to sign, he must execute a Special
Power of Attorney designating his counsel of record to sign
on his behalf (Anderson v. Ho, G.R. No. 172590, July 7,
2013).
The authorization of the affiant to act on behalf of a party may
be in the form of:
1. A secretary’s certificate; or
2. A special power of attorney (Rule 7, Section 5,
RoC).
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Undertakings of a party under the certification
against forum shopping:
1.
2.
3.
That the party has not commenced any action or any
claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his or her
knowledge, no such other action or claim is pending;
If there is such other pending action or claim, a
complete statement of the present status; and
If he or she should thereafter learn that the same or
similar action or claim has been filed or is pending,
he or she shall report that fact within 5 calendar days
to the court wherein his or her aforesaid complaint
or initiatory pleading has been filed.
When there are two or more plaintiffs in a pleading
All of them must execute the certification of non-forum
shopping (Loquias v. Office of the Ombudsman, G.R. No.
139396, August 15, 2000).
XPN: Under reasonable or justifiable circumstances, as
when all the plaintiffs or petitioners share a common interest
and invoke a common cause of action or defense, the
signature of only one of them in the certification against
forum shopping substantially complies with the Rule (Heirs
of Dinglasan v. Ayala Corp., G.R. No. 204378, August 5,
2019).
Example: When the petitioners are husband and wife, and
the subject property in the case belongs to the conjugal
property of the said petitioners, the Certificate of Non-Forum
Shopping signed by one of the spouses is deemed to
constitute substantial compliance with the Rules (Docena v.
Hon. Lapesura, G.R. No. 140153, March 28, 2001).
Reason for the exception: The interest of the petitionerspouses is closely intertwined given that they are husband
and wife and that each of them is a co-administrator of the
property under the Family Code and an administrator of the
property under the Civil Code. Therefore, the spouse who
signed the certification can validly represent the interest of
the other spouse.
Reason as to why only the party-litigants must sign
the certification:
It is because such party-litigants have the best position to
know whether there are other cases filed.
When the plaintiff is a juridical entity
The certification against forum shopping is executed by a
properly authorized person. It is required that a board
resolution empowering such person to execute the
certification or a secretary’s certificate must be appended
to the certificate of non-forum shopping.
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However, the following officials or employees can sign the
verification and certification without the need of a board
resolution:
1.
2.
3.
4.
5.
The Chairperson of the Board of Directors;
The President of a Corporation;
The General Manager or Acting General Manager;
Personnel Officer; and
An Employment Specialist in a labor case (Cagayan
Valley Drug Corporation v. CIR, G.R. No. 151413,
February 13, 2008).
The rationale in justifying the authority of corporate
officers or representatives of the corporation to sign the
verification or certificate against forum shopping is
because they are in a position to verify the truthfulness
and correctness of the allegations in the petition.
Non-compliance with the rules on forum shopping
It 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.
When there are several petitioner, it is insufficient that only
one of them executes the certification, absent a showing that
he was authorized by the others. The certification requires
personal knowledge and cannot be presumed that the
signatory knew that his co-petitioners had the same actions
filed or pending. Hence, a certification that was signed
without proper authorization is defective and is a valid cause
for dismissal (Fuentabella v. Castro, G.R. No. 150865,
June 30, 2006).
Without the presence of the notary upon the signing of the
Verification and Certification against Forum Shopping, there
is no assurance that the petitioner swore under oath that the
allegations in the petition have been made in good faith or
are true and correct and not merely speculative. Thus, the
absence of the notary when petitioner allegedly affixed her
signature also negates a proper attestation that forum
shopping has been committed by the filing of the petition.
Thus, the petition is, for all intents and purposes, an
unsigned pleading that does not deserve the cognizance of
the Court (De Lima v. Hon. Guerrero, G.R. No. 229781,
October 10, 2017).
Non-compliance with any of the undertakings or
submission of a false certification
It shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions.
Consequence of forum shopping
1. If the acts of the party or his or her counsel
constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal
with prejudice and shall constitute direct
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contempt, as well as a cause for administrative
sanctions.
2. If the forum is not considered willful and
deliberate, the subsequent case shall be
dismissed without prejudice, on the ground of
either litis pendentia or res judicata (Chua v.
Metropolitan Bank and Trust Company, G.R.
No. 157867, December 15, 2009).
Q: Is the certificate of non-forum shopping required
in other pleadings besides complaint?
A: YES. Certificate of non-forum shopping is also required
to be executed in initiatory pleadings.
Examples of initiatory pleadings:
1. Permissive counterclaim
2. Complaint
3. Original special civil action for certiorari
4. Prohibition on mandamus
The certification against forum shopping is required only
in complaint or other initiatory pleading. The ex parte
petition for the issuance of a writ of possession is not an
initiatory pleading. As an incident or consequence of the
original registration or cadastral proceedings, the motion
or petition for the issuance of a writ of possession, not
being an initiatory pleading, dispels the requirement of a
forum-shopping certification (Metropolitan Bank & Trust
Company v. Santos, G.R. No. 157867, December 15,
2009).
Compulsory counterclaim do not need the execution of
certification of non-forum shopping. Meanwhile, a claim
for non-payment of hospital bills is a permissive
counterclaim.
Therefore,
being
a
permissive
counterclaim, plaintiffs need to execute a certification of
non-forum shopping (Sto. Tomas University v. Surla,
G.R. No. 129718, August 17, 1998).
SECTION 6: CONTENTS
In addition to the requirements mandated by Section 2,
Rule 7, every pleading stating a party’s claim or defenses
shall state:
1. Names of witnesses who will be presented to
prove a party’s claim or defense;
2. Summary of witnesses’ testimonies; and
3. Documentary and objective evidence in support
of the allegations contained in the pleading (Rule
7, Section 6, RoC).
RULE 8: MANNER OF MAKING ALLEGATIONS IN
PLEADINGS
SECTION 1: IN GENERAL
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Manner of making allegations in pleadings
Every pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the ultimate
facts, including the evidence on which the party pleading
relies for his or her claim or defense, as the case may be.
If a cause of action or defense relied on is based on law,
the pertinent provisions thereof and their applicability to
him or her shall be clearly and concisely stated (Rule 8,
Section 1, RoC).
Two Kinds of Facts under the Rules on Pleading
1. Ultimate facts
The ultimate facts refer to the essential facts of the claim.
A fact is essential if it cannot be stricken out without leaving
the statement of the cause of action inadequate (Ceroferr
Realty Corporation vs. Court of Appeals, 376 SCRA
144). The ultimate facts do not refer to the details of
probative matter or to the particulars of evidence by which
the material elements are to be established. They are the
principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests
(Tantuico, Jr. v. Republic, 204 SCRA 428).
2.
Evidentiary facts
Those facts which are necessary for determination of the
ultimate facts; they are the premises upon which conclusions
of ultimate facts are based (Womack v. Industrial Comm.,
168 Colo. 364).
NOTE: Both kinds of facts must be alleged in every pleading.
If, upon the filing of the pleading, evidentiary facts are yet to
be discovered, a statement must be made that the evidentiary
facts will be produced through the modes of discovery.
SECTION 2: ALTERNATIVE CAUSES OF ACTION OR
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
(Rule 8, Section 2, RoC).
Alternative Causes of Action
Rule 8, Section 2 recognizes that the liability of the
defendant may possibly be based on either one of two or
more possible causes of action.
The plaintiff may, for example, believe that the liability of
the carrier may be based either (1) on a breach of contract
of carriage or (2) on a quasi-delict, but he may not be
certain which of the causes of action would squarely fit the
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set of facts alleged in the complaint, although he is certain
that he is entitled to relief. He may therefore, state his
causes of action in the alternative. Rule 8, Sec. 2, in
effect, relieves a party from being compelled to choose
only one cause of action (Riano, 2014).
Precedent
In any pleading, a general averment of the performance
or occurrence of all conditions precedent shall be
sufficient (Rule 8, Section 3, RoC).
SECTION 4: CAPACITY
Inconsistent Causes of Actions is Permissible
Only natural and juridical persons can be sued or can sue.
Pleading alternative causes of action normally leads to
inconsistent claims. For instance, the elements of a cause
of action based on a contractual theory are inconsistent
with those of a cause of action based on a quasi-delict.
As previously discussed, a suit based on a breach of
contract of carriage for example, does not require an
allegation and proof of negligence because it is not an
element of a breach of contract suit. On the other hand,
negligence, as a rule, is an essential element of a suit
based on a quasi-delict. Under Sec. 2 of Rule 8, this
situation is permissible as long as the allegations pleaded
within a particular cause of action are consistent with the
cause of action relied upon as an alternative. Thus, if the
alternative cause of action is a breach of contract, the
allegations therein must support the facts constituting the
breach of the contract.
Facts showing the capacity of a party to sue or be sued or
the authority of a party to sue or be sued in a representative
capacity or the legal existence of an organized association
of persons that is 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 (Rule 8, Section 3, RoC).
Determination of the capacity to sue or be sued
Reading of the allegations in the complaint. Capacity of
the complainant and the defendant must be stated in the
complaint.
Alternative Defenses
Natural Persons
Sec. 2 of Rule 8 authorizes not only alternative causes of
action. The rule likewise permits alternative defenses.
Thus, a defendant may assert the defense of payment of
the debt or the prescription of said debt.
Capacitated to sue or be sued when the person is of legal
age.
SECTION 3: CONDITIONS PRECEDENT
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 (Rule 8,
Section 3, RoC).
Examples of Conditions Precedent
1. A tender of payment is required before making a
consignation.
2. Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action.
3. Prior resort to barangay conciliation proceedings is
necessary in certain cases.
4. Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the
case must be dismissed.
5. Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse to judicial remedies.
XPNs:
1. Minor – must be represented by the parents or a
guardian ad litem. The suit must be in the name of
the minor, but represented by the said parents or
guardian ad litem. (ex: AAA as represented by her
father BBB)
2. Insane – must be represented by a guardian ad
litem.
NOTE: Despite being incapacitated, the complaint must still
be in their name.
Domestic Corporations
To have the required capacity, Domestic Corporations
must be organized under the laws of the Philippines.
Foreign Corporations
To have the required capacity, a Foreign Corporation
must:
1. Organized under a foreign law and is licensed to
do business in the Philippines; or
2. If not doing business in the Philippines, the
Foreign Corporation must be suing under an
isolated transaction.
Manner of Alleging Compliance with Conditions
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In the case of Antam Consolidated v. CA, G.R. No. L61523, July 31, 1986, the Supreme Court ruled that the
transactions entered into by the respondent with the
petitioners are not a series of commercial dealings which
signify an intent on the part of the respondent to do
business in the Philippines but constitute an isolated one
which does not fall under the category of "doing
business." The records show that the only reason why the
respondent entered into the second and third transactions
with the petitioners was because it wanted to recover the
loss it sustained from the failure of the petitioners to
deliver the crude coconut oil under the first transaction
and in order to give the latter a chance to make good on
their obligation.
particulars would necessarily include the specific acts of
fraud committed against the plaintiff would help apprise the
judge of the kind of fraud involved in the complaint (Riano,
2016).
In the case of Steelcase, Inc. v. Design International
Selections, Inc., GR. No. 171995, April 18, 2012, the
Supreme Court ruled that one act appointing a
representative or distributor domiciled in the Philippines
which transacts business in the representative’s own
name cannot be deemed not deemed as not “doing
business” absence full control. Design International is
merely an independent contractor.
Specifically alleged with particularity
Lack of Capacity to Sue v. Lack of Personality to Sue
LACK OF LEGAL
CAPACITY TO SUE
Plaintiff’s
disability
account
insanity.
to
of
general
sue on
minority,
The plaintiff does not
have
the
necessary
qualifications (Columbia
Pictures, Inc. v. CA,
G.R. No. 110318, August
28, 1996).
LACK OF PERSONALITY
TO SUE
Averments of Malice, Intent, Knowledge or Other
condition of the mind of a person
The circumstances may be averred generally (Rule 8,
Section 5, RoC).
Reason: The rule is borne out of human experience.
Difficult to state the particulars constituting the conditions
of the mind of a person (Riano, 2016).
1. Fraud and mistake (Rule 8, Section 5, RoC); and
2. Capacity (Rule 8, Section 4, RoC).
Generally alleged:
1.
2.
3.
The fact that the plaintiff is
not a real party in interest
(Columbia Pictures, Inc.
v. CA, G.R. No. 110318,
August 28, 1996).
Conditions precedent (Rule 8, Section 3, RoC);
Malice, intent, knowledge or other conditions of the
mind (Rule 8, Section 5, RoC); and
Judgment of a domestic or foreign court, judicial or
quasi-judicial tribunal, or of a board or officer.
Provided, an authenticated copy of the judgment or
decision shall be attached to the pleading (Rule 8,
Section 6, RoC).
SECTION 5: JUDGMENT
Domestic and Foreign Judgment
Remedy: File an answer
and raise as an affirmative
defense that the complaint
states no cause of action.
Remedy: File an answer
and raise lack of capacity
to sue as an affirmative
defense.
SECTION 4: FRAUD, MISTAKE, CONDITION OF THE
MIND
Averments of Fraud or Mistake
The circumstances constituting fraud or mistake must be
stated with particularity (Rule 8, Section 5, RoC).
In case of ambiguity or failure to alleged the
circumstances constituting the fraud or mistake, the
remedy is to file a Motion for Bill of Particulars.
Under Sec. 5, Rule 8, the complaint must state with
particularity the fraudulent acts of the adverse party. These
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1.
2.
Sufficient to aver the judgment or decision without
setting forth the matter showing jurisdiction to
render it;
Attaching an authenticated copy of the judgement or
decision in the pleading (Rule 8, Section 6, RoC).
NOTE: The rule requires that the authenticated copy of the
decision is attached in the pleading. Such authenticated copy
need not be consularized. The Philippines is a member of
the Hague Convention which abolished the requirement of
the legalization for foreign public document. It is sufficient if
the authenticated copy is apostilled.
Under Sec. 3(n), Rule 131, there is a presumption, even
though disputable, that a “court, or judge acting as such,
whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction.” (Riano, 2016)
SECTION 7: ACTION OR DEFENSE BASED ON
DOCUMENT
A written document used as basis for the cause of action
or for the defense (ex.: written contract of lease,
promissory note).
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Action or defense based on an actionable document
1. Substance of such instrument or document shall
be set forth in the pleading; and
2. Original or a copy of the document shall be
attached to the pleading as an exhibit. (Rule 8,
Section 7, RoC).
Note: A party can only file a reply when the answer is
based on an actionable document.
SECTION 8: HOW TO CONTEST SUCH DOCUMENT
1. By specifically denying the due genuineness
and due execution of the document under oath;
and
2. By setting forth what the party claims to be the
facts
When an action or defense is founded upon a written
instrument, or attached to the corresponding pleading, the
genuineness and due execution of the instrument shall be
deemed admitted (Rule 8, Section 8, RoC).
Mere statement of “specifically deny” and “for being selfserving and pure conclusions” do not constitute and
effective denial (Go Tong Electrical Supply v. BPI, G.R.
No. 187487, June 29, 2015).
When an oath is not required
The requirement of a specific denial under oath will not
apply in the following:
1. Adverse party does not appear to be a party to
the instrument; or
2. Compliance with an order for an inspection of the
original instrument is refused (Rule 8, Section 8,
RoC).
Technical Admission
The failure of a party to specifically deny the genuineness
and due execution of the instrument will give rise to a
technical admission that the said document is genuine
and is duly executed.
NOTE: If the answer does not comply with the
requirements of a specific denial, the answer fails to
tender an issue. (See Rule 35)
Genuineness
The instrument is no spurious or different.
The signature in the document is voluntarily and
knowingly affixed; that it is genuine; and that the party
who executed the document has authority to sign.
Defenses cut off by the admission of genuineness
and due execution
When a party is deemed to have admitted the genuineness
and due execution of an actionable document, defenses that
are implied from the said admission are necessarily waived
(ex. Forgery, lack of authority to execute the document, party
charged signed the document in some other capacity, that
the document was never delivered, or the document was not
in words and figures as set out in the pleadings) (Hibberd v.
Rohde and McMillian, G.R. No. 8418, December 9, 1915).
Defenses not cut off by the admission of genuineness
and due execution
1.
2.
Payment or non-payment;
Want of consideration; (Bough and Bough v.
Cantiveros, G.R. No. 13300, September 29, 1919)
3. Illegality of consideration;
4. Usury;
5. Fraud; (Bough and Bough v. Cantiveros, ibid.)
6. Statute of Limitation;
7. Duress;
8. Imbecility;
9. Mistake;
10. Minority;
11. Compromise; and
12. Estoppel. (Hibberd v. Rohde and McMillian, supra.)
These defenses are not consistent with the admission of the
genuineness and due execution of the instrument, and not,
therefore, barred. (Hibberd v. Rohde and McMillian, supra.)
SECTION 9: OFFICIAL DOCUMENT OR ACT
Official document or act
Sufficient to aver that the document was issued or the act was
done in compliance with law.
SECTION 10: SPECIFIC DENIAL
Types of Specific Denial
1. Absolute Denial
Defendant must specify each material allegation of
fact the truth of which he or she does not admit and,
whenever practicable, shall set forth the substance
of the matters upon which he or she relies to support
his or her denial.
2. Partial Denial
Due execution
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Defendant must specify so much of it as is true and
material and shall deny only the remainder.
XPN: Allegations as to the amount of unliquidated damages.
SECTION 12: AFFIRMATIVE DEFENSES
3. Disavowal of Knowledge
Defendant alleges that he is without knowledge or
information, thus, he shall so state, and this shall
have the effect of a denial.
Form of denial must be availed of with sincerity and
good faith, not for the purpose of confusing the other
party, nor for purposes of delay (Warner Barnes vs.
Reyes, G.R. No. L-9531, May 14, 1958).
Specific Denial
The mere statement the Answer, i.e., that they
"specifically deny" the pertinent allegations of the
Complaint does not constitute an effective specific denial
as contemplated by law. Verily, a denial is not specific
simply because it is so qualified by the defendant. Stated
otherwise, a general denial does not become specific by
the use of the word "specifically" (Go Tong Electrical
Supply, Inc. vs BPI, G.R. 187487, June 29, 2015).
Negative pregnant
Form of negative expression which carries with it an affirmation
or at least an implication of some kind favorable to the adverse
party. In sum, he admits more than what he denies.
Affirmative Defenses
Grounds under Rule 8:
1.
2.
3.
4.
5.
Lack of jurisdiction over the defendant;
Improper venue;
No legal capacity to sue;
No cause of action stated;
Condition precedent for filing the claim has not
been complied with
Other Grounds under Rule 6:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Lack of jurisdiction over the subject matter,
Litis pendentia;
Res judicata;
Fraud;
Statute of limitations;
Release;
Payment;
Illegality;
Statute of frauds;
Estoppel;
Former recovery;
Discharge in bankruptcy;
Any other matter by way of confession and avoidance.
A denial in the form of a negative pregnant is an ambiguous
pleading, since it cannot be ascertained whether it is the fact or
only the qualification that is intended to be denied (41 Am. Jur.
429).
Waiver of affirmative defenses
Thus, such negative pregnant implies or carries within it an
admission.
Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.
Illustration:
As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6
COMPLAINT
Plaintiff entered into a
Contract of Absolute Sale
with the Defendant over a
property amounting to
P500,000 on January 7,
2019
located
in
Sampaloc, Manila.
ANSWER
Defendant denies that he
entered into a Contract of
Absolute Sale with the
Plaintiff over a property
amounting to P500,000 on
January 7, 2019 located in
Sampaloc, Manila.
The answer is a mere repetition of the allegations made
in the complaint. The answer is vague as to what it really
denies.
SECTION 11: ALLEGATIONS NOT SPECIFICALLY
DENIED DEEMED ADMITTED
GR: Material averments in a pleading asserting a claim or
claims not specifically denied are deemed admitted.
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The court may conduct a summary hearing within 15
calendar days from the filing of the answer. Such affirmative
defenses shall be resolved by the court within 30 calendar
days from the termination of the summary hearing.
Denial of Affirmative Defenses; Prohibitions
Denial of affirmative defenses shall not be the subject
of:
1.
2.
3.
4.
Motion for reconsideration;
Petition for certiorari;
Prohibition; and
Mandamus.
These prohibitions stem from the fact that the order of
denial is an interlocutory order.
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CIVIL PROCEDURE REVIEWER
Such denial of affirmative defenses will not hinder the
court from continuing with the trial.
RULE 9, SECTION 2: FAILURE TO PLEAD A
COMPULSORY COUNTERCLAIM AND CROSSCLAIM
Remedy on Denial of Affirmative Defenses
Assign the order of denial as among the matters to be
raised on appeal after a judgment on the merits.
SECTION 13: STRIKING OUT OF PLEADING OR
MATTER CONTAINED THEREIN
The court may order any pleading to be stricken out or
that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
therefrom:
1. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is
permitted by these Rules;
2. Upon motion made by a party within 20 calendar
days after the service of the pleading upon him or
her;
3. Upon the court's own initiative at any time.
RULE 9: EFFECT OF FAILURE TO PLEAD
SECTION 1: DEFENSES AND OBJECTIONS NOT
PLEADED
General rule: Defenses and objections not pleaded either
in the motion to dismiss or in the answer are deemed
waived (Rule 9, Section 1, RoC).
Exceptions:
1.
2.
3.
4.
Lack of jurisdiction over the subject matter
Litis Pendentia
Res Judicata
Prescription (Rule 9, Section 1, RoC).
General rule: A compulsory counterclaim, or a crossclaim, not set up shall be barred (Rule 9, Section 2,
RoC).
Exception: When a pleader fails to set up a counterclaim
or 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 (Sec. 10, Rule 11).
Compulsory counterclaim
Arises out or necessarily connected with the transaction
or occurrence constituting with the subject matter and
therefore it has a logical connection with the subject
matter. You must raise it because failure to raise it, it will
be deemed barred.
Permissive counterclaim
General Rule: A counterclaim is permissive if any of the
elements of a compulsory counterclaim is absent, BUT
most common feature of a permissive counterclaim is its
absence of a logical connection with the subject matter.
Exception: Counterclaim for damages based on culpa
aquilana in a case for collection of money.
Compulsory counterclaim; tests
Based on rules, the court has devised a more complete test:
1.
2.
Q: What is difference between failure to state a cause
of action and failure to prove a cause of action?
3.
A:
4.
1. Failure to state cause of action – refers to
“complaint” itself; based on the complaint there is
no cause of action.
Remedy: Raise it as an Affirmative Defense
2. Failure to prove a cause of action – it means it
went to trial and plaintiff failed to prove the cause
of action by evidence
Remedy: File a Demurrer to Evidence
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Are the issues of fact and law raised by the claim
and the counterclaim largely the same?
Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
Will substantially the same evidence support or
refute the plaintiff’s claim as well as the defendant’s
counterclaim?
Is there any logical relation between the claim and
the counterclaim?
A positive answer to all four questions would indicate the
counterclaim is compulsory. Otherwise, it will be permissive
counterclaim.
Examples:
•
AAA sues BBB for recovery of track of land, BBB
seeks in turn to be reimbursed the value of the
improvements she has introduced in the same
land and the payment of damages she has
sustained as a consequence of the suit.
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CIVIL PROCEDURE REVIEWER
•
Most common compulsory counterclaim is to
claim in the same suit for his expenses for being
forced to litigate in the face of an allegedly
unfounded and baseless complaint.
RULE 9, SECTION 3: DEFAULT; DECLARATION OF
Failure of the defending party to answer within the time
allowed therefor (Sec. 3, Rule 9).
Dual stages of default:
1. Declaration of order of 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.
2. Rendition of judgment by 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 (Sec. 3, Rule 9).
provided by the ROC (Sablas v. Sablas, G.R. No.
144568, July 3, 2007).
5. The defending party must be notified of the
motion to declare him in default [Sec. 3, Rule 9]
6. There must be a hearing set on the motion to
declare the defending party in default (Spouses
de los Santos v. Carpio, G.R. No. 153696,
2006)(1 Riano 364, 2014).
Effect of an order of default
1.
2.
b.
Q: When can there be instances that a party be
declared in default?
When declaration of default is proper
The rule on default clearly establishes the “failure to
answer within the time allowed therefor” as the ground for
a declaration of default (Sec. 3, Rule 9).
From the tenor of the Rules, default does not technically
occur from the failure of the defendant to attend either the
pre-trial or the trial.
Requisites before a declaration of default:
1. The court must have validly acquired jurisdiction
over the person of the defending party, either by
service of summons or voluntary appearance
2. The defending party must have failed to file his
answer within the time allowed therefor
3. The claiming party must file a motion to declare
the defending party in default
4. The claiming party must prove that the defending
party has failed to answer within the period
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Require the claimant to submit evidence; such
reception of evidence may be delegated to the
clerk of court (Sec. 3, Rule 9).
Declaration of default is not tantamount to an
admission of the truth or the validity of the plaintiff’s
claims. It is not a waiver of rights except that of being
heard and presenting evidence in defendant’s favor.
A:
1. Failure to file an answer within the reglementary
period.
2. Failure to comply with modes of discovery.
The party declared in default loses his standing in
the court. This prevents him from taking part in the
trial. While the defendant can no longer take part in
the trail, he is still entitled to notices of subsequent
proceedings. He may participate in the trial, not as
party but as a witness (Sec. 3, Rule 9).
The court may either:
a. Proceed to render judgment granting the
claimant such relief as his pleading may
warrant, or
3.
A defending party declared in default retains the
right to appeal from the judgment by default.
However, the grounds that may be raised in such an
appeal are restricted to any of the following:
a.
b.
c.
The failure of the plaintiff to prove the material
allegations of the complaint;
The decision is contrary to law; and
The amount of judgment is excessive or
different in kind from that prayed for (Otero v.
Tan, G.R. No. 200134, August 15, 2012).
Q: What could be the possible reasons why defendant
opts to be declared in default?
A: For defendant not to be liable for unliquidated
damages and pay what is his obligation.
Q: If the defendant filed an answer but failed to appear
during trial, what will happen?
A: The case will proceed and there will be a presentation
of evidence EX-PARTE.
Relief from order of judgment
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CIVIL PROCEDURE REVIEWER
In the case of Otero v. Tan, G.R. No. 200134, August 15,
2012, citing the case of Lina v. CA, G.R. No. L-63397,
April 9, 1985, the Supreme Court enumerated the reliefs
that may be availed of by a defendant declared in default.
These are:
1. 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:
a. His failure to answer was due to fraud,
accident,
mistake
or
excusable
negligence; and
b. He has a meritorious defense (Sec. 3(b),
Rule 9).
“Meritorious defense” means that the motion
must be accompanied by a statement of the
evidence which he intends to present if the
motion is granted and which is such as to warrant
a reasonable belief that the result of the case
would probably be otherwise if a new trial is
granted (Kilosbayan v. Janolo, G.R. No. 180543,
July 27, 2010).
In such case, the order of default may be set
aside in such terms and conditions as the judge
may impose in the interest of justice (Sec. 3(b),
Rule 9).
2. 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. A motion for new trial under Sec. 1(a),
Rule 37, or
b. An appeal from the judgment as being
contrary to the evidence or the law.
3. If the defendant discovered the default after the
judgment has become final and executory, he
may file a petition for relief under Rule 38.
4. These remedies presuppose that defending party
was properly declared in default, but it is
submitted, however, that certiorari will lie when
said parry was improperly declared in default.
Effect of partial default
When a pleading asserts a claim against several defending
parties and some file and serve their answers but the others
do not, the court shall try the case against all the defending
parties based on the answer filed and render judgment upon
the evidence presented where the claim states a common
cause of action against them.
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Q: Pedro, Juan, and Andres borrowed money to Rodolfo. 3
of them joint and severally executed a promissory note.
However, they failed to pay. Rodolfo filed a complaint
against the 3. Juan and Andres did not answer, but Pedro
filed an answer. Rodolfo filed motion to declare Juan and
Andres in default. Judge granted the motion. Is the Judge
correct?
A: NO, the 3 of them is being sued under the same cause of
action. The answer of defendant (Pedro) will inure to the other
non-answering defendants because they are sued in the same
cause of action. Hence, the other defendant which did not
submit answer cannot be declared in default.
Even if the defense raised by Pedro is personal to him e.g.
minority, the others cannot be declared in default for reason that
Pedro can present evidence that can inure to the other
defendants.
RATIO: There could be a possibility of having two conflicting
judgement.
The other defendants who did file an answer may file a motion
to admit answer.
Extent of relief of judgment by default
The reliefs that may be granted in default situations are
restricted by Section 3(d) of R9 of the Rules of Court.
Thus, if the complaint seeks to recover P1,000,000, but the
evidence of plaintiff shows a right to recover of P1,500,000, the
court has no authority to grant the latter amount despite
evidence.
Why? Because, under the rules, a judgment rendered against a
party in default shall not exceed the amount or be different in
kinds from that prayed for nor award liquidated damages
(Gochangco v. CFI Negros Occidental, G.R. No. L-49396,
January 15, 1998).
Q: What is the difference between UNLIQUIDATED
damages and LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject
to evidence before it can properly be awarded such as the
presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched
reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and
proof or evidence to establish the same are not required. An
example is an obligation with a penal clause like an agreement
to construct a house and upon failure to finish the same within a
stipulated period, the contractor is liable for P10,000 for every
day of delay. The amount is already fixed based on the contract
price and the penalty provided and such other circumstances as
stipulated.
Q: In the complaint, the claim is P300,000. The defendant
defaulted. The court required the plaintiff to present his
evidence and during the trial, the latter proved P500,000
total claim. Can the court award P500,000 claim as proved?
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CIVIL PROCEDURE REVIEWER
A: NO. It should only be P300,000 as prayed for in the
complaint.
would show immediately what was amended, e.g.,
underline.
Q: Suppose during the trial, only P200,000 was
proved. What should be the amount of the default
judgment?
Q: What is the effect of filing an amended complaint?
A: Only P200,000 as proved because it did not exceed the
amount prayed for in the complaint.
Cases where a declaration/order of default cannot be
made
A: The amended complaint vacates the original
complaint. The original complaint will not be considered
as forming part of the records of the case anymore.
SECTION 2: AMENDMENTS AS A MATTER OF
RIGHT
Amendments as a matter of right
It is not allowed in following actions:
1. Cases involving Intra-corporate controversies;
2. Cases under the Rules on Summary
Proceedings;
3. Cases under Small Claims
4. Annulment of marriage
5. Declaration of nullity of marriage; and
6. Legal separation
In cases of Annulment of marriage, Declaration of Nullity
of Marriage, and Legal Separation, if no answer is filed in
above actions, the court shall order the prosecuting
attorney to investigate whether or not collusion exists
between the parties. If there is no collusion, the court shall
order said prosecuting attorney to intervene for the state
in order to see to it that the evidence submitted is not
fabricated.
RULE 10: AMENDED AND SUPPLEMENTAL
PLEADINGS
SECTION 1: AMENDMENTS IN GENERAL
How pleadings are amended
Pleadings may be amended in the following manner:
1. By adding or striking out:
a. An allegation;
b. The name of any party;
2. By correcting a mistake
a. In the name of a party;
3. By correcting a mistake or inadequate:
a. Allegation;
b. Description in any other respect.
Amendments are allowed 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. 1, Rule 10).
Put the words ‘Amended Complaint’ so as to distinguish
it from the original complaint; put identifying marks that
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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) calendar days after it is served.
(Sec. 2, Rule 10)
This section refers to an amendment made before the trial
court, not to amendments before the Court of Appeals. The
Court of Appeals is vested with discretion to admit or deny
amended petitions filed before it (Riano, p. 370, 2019.)
Note: A motion to dismiss is not a responsive pleading and its
filing does not preclude the exercise of the plaintiff’s right to
amend his complaint (Riano, p. 370, 2019.)
Applicability of mandamus
The court would be in error if it refuses to admit an
amended pleading when its exercise is a matter of right.
This error is correctible by mandamus because the trial
court’s duty to admit an amended complaint made as a
matter of right is purely ministerial (Riano, p. 370, 2019
ed.).
Introduction of a different cause of action in an
amended complaint; test and its effect
To determine if an amendment introduces a different
cause of action, the test is whether such amendment now
requires the defendant to answer for a liability or
obligation which is completely different from that stated in
the original complaint (Sps. Dioniso v. Linsangan, G.R.
No. 178159, March 02, 2011).
Q: A filed the original complaint on June 01, 2019. On
August 01, 2019, A filed an amended complaint. Will the
filing of the amended complaint be deemed to retroact to
the date of filing of the original complaint?
A: It depends. When the amended complaint does not
introduce the new issues, causes of action, or demands,
the suit is deemed to have commenced on the date the
original complaint was filed, not on the date of the filing of
the amended complaint.
The original complaint is deemed abandoned and
superseded by the amended complaint only if the
amended complaint introduces a new or different cause
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CIVIL PROCEDURE REVIEWER
of action or demand (Verzosa v. CA, G.R. No. 119511-13,
November 24, 1998).
NOTE: If the amended complaint was submitted by way
of motion on August 1 and it was approved on September
1, it is deemed to have been filed on August 1.
Significance of the original complaint
The Amended Complaint takes the place of the original.
The latter is regarded as abandoned and ceases to
perform any further function as a pleading. The original
complaint no longer forms part of the record. If petitioner
had desired to utilize the original complaint she should
have offered it in evidence. Having been amended, the
original complaint lost its character as a judicial
admission, which would have required no proof, and
became merely an extrajudicial admission, the
admissibility of which, as evidence, required its formal
offer (Torres v. CA, G.R. No. 197923, June 22, 2015).
The courts will not rely on the original complaint when it
was not offered in evidence as the original complaint no
longer forms part of the records of the case.
When a pleading is amended, the original pleading is
deemed abandoned. The original ceases to perform any
further function as a pleading. The case stands for trial on
the amended pleading only. On the basis of the foregoing,
the additional docket fee to be paid by the petitioners
should be based on their amended complaint (Magaspi
v. Ramolete, G.R. No. L-34840, July 20, 1982).
SECTION 3: AMENDMENTS BY LEAVE OF COURT
Q: When is leave of court required?
A:
1. For an amendment made after service of a
responsive pleading;
2. If the amendment is substantial.
NOTE: Even if the amendment be with leave of court, it
still stands to be eventually rejected where such
amendment appears to the court to have been made with
the intent to delay the proceedings (Riano, p. 372, 2019)
The amendment may 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 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 (Philippine Ports Authority v. WG&A, G.R.
No. 158401, January 28, 2008).
SECTION 4: FORMAL AMENDMENTS
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Formal Amendments
1. 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;
2. At the court’s initiative or on motion;
3. Provided that no prejudice is caused thereby to
the adverse party (Sec. 4, Rule 10).
SECTION 5: NO AMENDMENT NECESSARY TO
CONFORM TO OR AUTHORIZE PRESENTATION OF
EVIDENCE
Court acquires jurisdiction over the issues even if the same
are not alleged in the original pleadings of the parties.
Example: When the trial of said issues is with the express
consent of the parties.
This rule is premised on the fact that evidence had been
introduced on an issue not raised by the pleadings without
any objection by the adverse party.
It does not apply when the case was decided on a stipulation
of facts in which case the pleadings are not deemed
amended to conform to the evidence (MWSS v. CA, et al.,
G.R. No. 54526, Aug. 25, 1986).
The trial court should not be precluded from awarding an
amount higher than that claimed in the pleadings
notwithstanding the absence of the required amendment,
provided that the evidence of such higher amount has been
presented properly, with full opportunity on the part of the
opposing parties to support their respective contentions and
to refute each other’s evidence (Northern Cement Corp. v.
IAC, et al., G.R. No. 68636, Feb. 29, 1988).
Q: ‘A’ filed a complaint without praying for moral
damages, exemplary damages and attorney’s fees. An
answer was filed, and they went to pre-trial. During the
pre-trial stage, the issues did not include whether or not
the defendant should be held liable for moral damages,
exemplary damages and attorney’s fees. Is it a triable
issue?
A: NO. It is not a triable issue. To be a triable issue, it must
be introduced in the pleadings.
Q: Continuing from the case above, A, during the
presentation of evidence, called a witness to the witness
stand. In the judicial affidavit of the witness, it stated that
the testimony of the witness states factual basis for the
grant of moral damages, exemplary damages and
attorney’s fees. The other party did not object. Is it a
triable issue?
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CIVIL PROCEDURE REVIEWER
A: YES. A was able to introduce evidence necessary to
serve as basis for moral damages, exemplary damages
and attorney’s fees. Even if the issue was not generated
by the pleadings, it could be tried as if it was one of the
issues generated in the pleadings.
Q: Continuing from the case above, is A required to
move for amendment of the pleading in order for the
pleading to be conformed to the evidence presented?
A: NO. Since the evidence is already part of the records
of the case.
NOTE: In this case, the other party should have objected
to the presentation of evidence for the grant of moral
damages, exemplary damages and attorney’s fees since
it was not a triable issue in the first place. It only became
a triable issue when the other party did not object, which
was considered as an implied consent to make it one of
the triable issues.
SECTION 6: SUPPLEMENTAL PLEADINGS
Distinctions between amended and supplemental
pleadings
AMENDED PLEADINGS
Refer to facts existing at
the
time
of
the
commencement of the
action.
Results
in
the
withdrawal
of
the
original pleading.
Can be made as of a
right, as when no
responsive
pleading
has yet been filed.
SUPPLEMENTAL
PLEADINGS
Refer to facts arising after
the filing of the original
pleading.
Does not result in the
withdrawal of the original
pleading.
Always with leave of
court.
It is up to the adverse party to decide whether to plead
thereto, provided that if he decides to plead, he must
observe the reglementary period of ten (10) calendar days
therefor.
A court may allow a party, upon motion, to serve a
supplemental pleading after reasonable notice has
been given to the other party (Leobrera v. CA, G.R. No.
80001, February 27, 2989).
Supplemental complaint should only supply deficiencies
in aid of an original complaint. It should only contain
causes of action relevant and material to the plaintiff’s
right and which helps the plaintiff’s right or defense. It
cannot be used to try a new matter or a new cause of
action since it must be based on matters arising
subsequent to the original complaint (Leobrera v. CA,
G.R. No. 80001, February 27, 2989).
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SECTION 7: FILING OF AMENDED PLEADINGS
Amendments to a pleading should be indicated in the
amended pleading, as by:
1.
2.
3.
Underscoring;
Enclosing them in quotation marks;
Putting them in capital letters, and so forth, as would
make them readily evident.
SECTION 8: EFFECT OF AMENDED PLEADINGS
Even with the admission of the amended pleading amounts
to the withdrawal of the original pleading, the latter is not
expunged, but remains in the record of the case. Reference
can by readily made to the original pleading regarding the
effect of the amendment.
RULE 11: RESPONSIVE PLEADINGS
When to file responsive pleadings?
Answer to a Complaint - within 30 calendar days after
service of summons, unless there is a different period fixed
by court. (Sec. 1, Rule 11)
NOTE: Period to file an answer when the service of
summons is made by publication is 60 days after notice.
(Sec. 16 Rule 14)
Answer of a foreign corporation defendant - when the
summons is made on government officials designated by law
to receive the same, the period is within 60 calendar days
after the receipt of summons by such entity. (Sec. 2, Rule 11)
Answer to an amended complaint - if the plaintiff filed it as
a matter of right, the period is within 30 calendar days after
being served a copy of the amended complaint.
If the plaintiff filed it not as a matter of right, the period is
within 15 calendar days from the notice of the order admitting
the same.
The same rule shall apply to the answer to an amended
counterclaim, amended crossclaim, amended third-party
complaint (or fourth, etc. as the case may be), and when it is
an amended complaint-in-intervention. (Sec. 3, Rule 11)
Answer to counterclaim or crossclaim - within 20 calendar
days from service of the pleading responded to. (Sec. 4, Rule
11)
Note: If the party already has a compulsory counterclaim or
a crossclaim at the time such party files an answer, such
compulsory counterclaim or crossclaim shall be included in
the answer. (Sec. 8, Rule 11)
If the party acquired a counterclaim or a crossclaim after
serving his or her pleading, the party, with permission of
the court, may present such by supplemental pleading
before the judgment. (Sec. 9, Rule 11)
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CIVIL PROCEDURE REVIEWER
If the party fails to set up a counterclaim or a crossclaim,
such party may, with leave of court, set up a counterclaim
or crossclaim by amendment before the judgment,
provided however, that there is a showing and justification
that such failure was due to oversight, inadvertence,
excusable neglect, or when justice so requires. (Sec. 10,
Rule 11)
Answer to third-party complaint (or fourth, etc. as the
case may be) - within 30 calendar days after service of
summons, unless there is a different period fixed by court.
(Sec. 5, Rule 11)
Reply - if allowed under Section 10, Rule 6, within 15
calendar days from service of such pleading responded
to. (Sec. 6, Rule 11)
Answer to supplemental complaint - within 20 calendar
days from notice of the order admitting the same, unless
there is a different period fixed by court. (Section 7)
In Delbros Hotel Corporation vs. IAC, the Court stated that
a supplemental pleading is not like an amended pleading
— substitute for the original one. It does not supersede
the original, but assumes that the original pleading is to
stand, and the issues joined under the original pleading
remain as issues to be tried in the action.
Answer in Intervention – within 15 days from the order
admitting the complaint in intervention, unless a different
period is provided.
Extension to file an answer - A defendant may be
granted an additional period of not more than 30 calendar
days to file an answer provided that such is for meritorious
reasons.
NOTE: No party can ask for an extension of time if the
pleading to be submitted is not an answer.
A defendant is only allowed to file one motion for
extension to file an answer. (Sec. 11, Rule 11)
In the case of Sps. Barraza vs. Campos, the issue was
whether the judge may order the defendant in default
when such defendant filed a motion for extension of time
to answer. However, instead of filing an answer, such
defendant filed a motion to dismiss.
The court stated that it must be remembered that motion
to dismiss interrupts, not only original period to plead, but
also the extended period to plead. There is nothing in the
rules that provides that the interruption of the running of
the period within which to file an answer when a motion to
dismiss the complaint is filed and pending before the
court, refers only to the original period. The motion to
dismiss was filed before the expiration of the period for
filing defendant’s answer as extended by the court, hence
there was no legal reason for declaring defendant in default
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Illustrations:
Q: How many days within which to file an answer?
A: It depends. Under Rules on Summary Procedure and
Rules of Small Claims, within 10 days.
In ordinary civil actions, it depends on how the summons was
served. If it is personally, the period within which to file an
answer is 30 calendar days after service of summons, unless
a different period is fixed by court. However, if the summons
was served via publication, the period within which to file an
answer will be 60 days after notice of any order granting the
service through publication.
Q: Are there any instances where a foreign corporation
is not served through a government entity as required
under the rules?
A: Yes. A foreign corporation that is duly-licensed to conduct
business in the Philippines normally should have a residentagent. The job of a resident-agent is to receive summons. If
the summons was served to and received by the residentagent, that foreign corporation has a period of 15 calendar
days within which to file an answer to the complaint. If there
is no such resident-agent and the summons was given to the
government entity exercising supervision over such
corporation, Section 2 of Rule 11 provides that the defendant
foreign private juridical entity shall have 60 calendar days
after the receipt of such summons by the entity.
Q: X filed a complaint. Z filed his answer 10 days after
service of summons. X found a need to amend his
complaint. What should X do next? What will happen?
A: X now needs to file a Motion to File Amended
Complaint. If such motion is granted, defendant Z will be
given a period of 15 calendar days from notice of the order
admitting the same to file an answer to the amended
complaint.
As an answer was already filed previously, such filing of the
amended complaint is not a matter of right anymore.
Paragraph 2, Section 3 of Rule 11 states that where the filing
is not a matter of right, the defendant shall answer the
amended complaint within 15 calendar days from notice of
the order admitting the same. The period shall be reckoned
on the day of the notice of the order that admitted such
amended complaint, not from the service of summons.
Furthermore, there is no need for a new service of
summons because the court has already acquired
jurisdiction over the person of Z.
Q: If Z, for whatever reason, did not file an answer to the
amended complaint, what is the effect?
A: Z will not be declared in default, this is because the
court already acquired jurisdiction over his person. His
original answer will serve as his answer to the amended
complaint. The net effect would be that those matters
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introduced in the amended complaint will be deemed
admitted because there is no denial.
Q: The last day within which to file an answer to the
complaint of Y happened to fall on June 14, a Sunday,
W filed his answer the day after. Was the answer
seasonably filed?
A: Yes. If the last day falls on a Saturday, Sunday, or a
holiday, the deadline will be the next working day.
Q: W filed a motion for extension of time to file an
answer, when will be the reckoning point of the
extension?
A: The reckoning point will start from the actual deadline
or last day of the period. It does not matter if it fell on a
Saturday, Sunday, or a holiday. In this case, the counting
should start on the original deadline which is June 14, a
Sunday.
Q: When do you file an answer to a 3rd-party
complaint?
A: The same rules shall apply. It will be either within 15,
within 30, or within 60 calendar days as the case may be.
Q: An answer to a supplemental complaint must be
made within 20 calendar days from the notice of the
order admitting the same, however, what will happen
if there is no answer filed to the supplemental
complaint?
A: The same rule with unanswered amended complaint.
The original answer shall serve as the answer to the
supplemental complaint. (Sec. 7, Rule 11)
Q: How many days within which to file an answer to a
permissive counterclaim?
A: Section 4 of Rule 11 provides for the period within
which to file an “answer to counterclaim or crossclaim”.
Statutory Construction taught us that if the law does not
distinguish, we should not distinguish. Therefore, the
period is the same, 20 calendar days, whether the
counterclaim is permissive or compulsory.
In David vs Gutierrez-Fruelda, there was a service of
summons via publication. The RTC declared David in
default for failure to file an answer within 60 days. David
moved to lift the order of default and sought for another
15 days to file an answer. He stated that declarations of
default are frowned upon and that he should be given
opportunity to present evidence in the interest of
substantial justice, and that he has meritorious defenses.
The RTC denied the motion nonetheless. The trial court
stated that while the orders of default are disfavored, his
motion to lift the order of default is fatally flawed. The
motion was not under oath, unaccompanied by an affidavit
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of merit, and without any allegation that his failure to file an
answer was due to fraud, accident, mistake, or excusable
negligence.
He based his petition on the ground that there was an invalid
service of summons by publication. However, the Supreme
Court took note that David has voluntarily appeared when he
filed motions for extension to file an Answer. Thus, it is
deemed that there was a valid service of summons and the
trial court has acquired jurisdiction over his person. In effect,
David effectively waived any defect in the service of
summons.
While David used the remedy by filing a motion to set aside
the order of default, the motion was not under oath and there
was no allegation that such failure of filing an answer was
due to fraud, accident, mistake, or excusable negligence.
Furthermore, his allegations that he has meritorious
defenses is not sufficient. He did not even state what
evidence he intends to present if he was granted.
RULE 12: BILL OF PARTICULARS
SECTION 1: WHEN APPLIED FOR; PURPOSE
Purpose
Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter,
which is not averred with sufficient definiteness or
particularity, to enable him or her properly to prepare his
or her responsive pleading.
Example: In fraud cases
When fraud is alleged, the party must state it or allege it with
particularity. When the complaint merely states that the
defendant, through fraudulent machinations, due plaintiff into
signing the deed of absolute sale. The remedy is not to file a
Motion to Dismiss on the ground of failure to state a cause of
action, but to file a motion for bill of particulars.
Period to file the motion
If the pleading is a reply, the motion must be filed within
ten (10) calendar days from service thereof. Such motion
shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.
Instances when a bill of particulars is allowed:
1. When the allegations are indefinite and uncertain
that the nature cannot be understood therefrom;
2. When the allegations are so vague that they do
not appear therefrom in what capacity a party
sues or is issued;
3. When the allegations are uncertain as to time,
place, quantity, title, person, or any other matter
required to be pleaded with certainty;
4. When the allegations are faulty in duplication,
setting out two grounds for a single claim;
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5. When denials are so indefinite and uncertain that
it cannot be understood what is denied and what
is admitted;
6. Particulars of details of computation of bank
account were allowed; technicalities are frowned
upon; or
7. Conclusions of law – deceit, machination, false
pretenses, misrepresentations and threats are
conclusions of law and mere allegations thereof
without a statement of the facts to which such
terms have references are not sufficient (Herrera,
2007).
SECTION 2: ACTION BY THE COURT
Action of the court (DeGA)
1. Deny it outright
2. Grant it outright;
3. Allow the parties the opportunity to be heard.
SECTION 3: COMPLIANCE WITH ORDER
If the motion is granted, either in whole or in part:
• The compliance therewith must be effected within
ten (10) calendar days from notice of the order,
unless a different period is fixed by the court.
Manner of compliance
•
•
File an amended pleading, specifying with
particularity the requested details;
File an answer to the Motion for Bill of Particulars.
SECTION 4: EFFECT OF NON-COMPLIANCE
If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order:
•
•
The striking out of the pleading or the portions
thereof to which the order was directed;
Make such other order as it deems just (For
instance, you can file a motion to have the case
dismissed precisely because you do not know
what the other party is talking about).
his or her motion, which shall not be less than five (5)
calendar days in any event.
Example:
Q: A filed a complaint which was received by B on August 1.
B filed a Motion for Bill of Particulars on August 30. The order
granting the Motion for Bill of Particulars was received by B
on November 5. A supplemented, and filed an amended
complaint which was received by B on November 15. Until
when can B file an answer?
A: B has until November 20. After serving the BOP or a more
definite pleading or after notice of denial of his or her motion,
the moving party may file his or her responsive pleading
within the period to which he was entitled as of the time of
the filing of the motion. Technically, you have one day left,
but in no case shall it be less than 5 days as provided
under Sec. 5, Rule 12. Hence, November 20.
If denied, B has until November 10 within which to file your
answer to the complaint.
In other words, Motion for Bill of Particulars stops the
running for the period within which to file the answer.
Upon the filing of the answer, the period will resume again
depending on when you receive the order denying the motion
for BOP. After which, the defendant will have remaining
period within which to file an answer, but in no case shall it
be less than 5 days.
If granted, the period will commence when the defendant
received the amended complaint or answer to the motion for
Bill of Particulars, and has the remaining period, but in no
case shall it be less than 5 days.
NOTE: Calendar days include holidays and weekends. If the
deadline falls on such days, the deadline shall be the next
working day.
SECTION 6: BILL OF A PART OF PLEADING
Bill of particulars becomes part of the pleading for which it is
intended.
i.e. In the manner of compliance to the order granting the
Motion for Bill of Particulars, when you file an answer to the
Motion for Bill of Particulars, your answer to the Motion for
Bill of Particulars will be deemed incorporated or made part
of the original complaint.
Effect on the period to file a responsive pleading
Q: Within the period for filing a responsive pleading, the
defendant filed a motion for bill of particulars that he set for
hearing on a certain date. However, the defendant was
surprised to find on the date set for hearing that the trial court
had already denied the motion on the day of its filing, stating
that the allegations of the complaint were sufficiently made.
After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his or her motion, the
moving party may file his or her responsive pleading within
the period to which he or she was entitled at the time of filing
1. Did the judge gravely abuse his discretion in acting on the
motion without waiting for the hearing set for the motion?
2. If the judge grants the motion and orders the plaintiff to
file and serve the bill of particulars, can the trial judge
SECTION 5: STAY OF PERIOD TO FILE
RESPONSIVE PLEADINGS
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dismiss the case if the plaintiff does not comply with the
order? (2008 Bar)
A:
1. NO. Sec. 2, Rule 12 authorizes the court to either deny
or grant said motion outright or allow the parties an
opportunity to be heard. The court is not mandated to
conduct a hearing.
2. YES. Sec. 4, Rule 12 authorizes the court to order the
striking out of the pleading affected, hence the dismissal
of the complaint. To the same end is the provision of Sec.
3, Rule 17 when the plaintiff fails to comply for no
justifiable cause with any order of the court or with the
Rules.
In the case of Salita v. Magtolis, G.R. No. 106429, June
13, 1994, a complaint only needs to state the "ultimate
facts constituting the plaintiff’s cause or causes of action."
Ultimate facts has been defined as "those facts which the
expected evidence will support." As stated by private
respondent, "[t]he term does not refer to the details of
probative matter or particulars of evidence by which these
material elements are to be established." It refers to "the
facts which the evidence on the trial will prove, and not
the evidence which will be required to prove the existence
of those facts." And a motion for bill of particulars will not
be granted if the complaint, while not very definite,
nonetheless already states a sufficient cause of action. A
motion for bill of particulars may not call for matters which
should form part of the proof of the complaint upon trial.
Such information may be obtained by other means
NOTE: The function of the Bill of Particulars is to ask the
other party to particularize the allegations in the
complaint. The motion for BOP, its office is not to obtain
evidence from the other party. In the first place, motion for
BOP is not the proper remedy when the complaint does
not provide for the evidentiary basis of the allegations.
Motion for BOP is merely to determine the particularity of
a given allegations.
NOTE: Under the 2019 Amended Rules of Court, the
complaint requires to state the evidentiary facts.
In the case of Agcanas v. Mercado, G.R. No. L-15808, April
23, 1963, both a motion to dismiss and a motion for a bill of
particulars interrupt the time to file a responsive pleading. In
the case of a motion to dismiss, the period starts running
against as soon as the movant receives a copy of the order
of denial. In the case of a motion for a bill of particulars, the
suspended period shall continue to run upon service on the
movant of the bill of particulars, if the motion is granted, or of
the notice of its denial, but in any event he shall have not less
than five days within which to file his responsive pleading.
Note: When you file a Motion for BOP, it is incumbent upon
the court to rule on the motion for the BOP because the
action of the court will determine when you are bound to file
an answer. The court cannot simply brush it aside.
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In the case of Santos v. Liwag, G.R. No. L-24238, November
28, 1980, the allowance of a motion for a more definite
statement or bill of particulars rests within the sound judicial
discretion of the court and, as usual in matters of a
discretionary nature, the ruling of the trial court in that regard
will not be reversed unless there has been a palpable abuse
of discretion or a clearly erroneous order.
NOTE: This is an example where the proper remedy is a
Motion for BOP especially when fraud is not alleged with
particularity.
In the case of Guy v. Guy, G.R. No. 189486, September 5,
2012, doubt as to the meaning of the pleading may be
resolved by seeking a bill of particulars. A bill of particulars
may be ordered as to a defense of fraud or mistake if the
circumstances constituting fraud or mistake are not stated
with the particularity required by the rule. However, this rule
does not apply to intra-corporate controversies. It is
essential, therefore, for the complaint to show on its face
what are claimed to be the fraudulent corporate acts if the
complainant wishes to invoke the court’s special commercial
jurisdiction.
NOTE: If you file a complaint and you did not allege a matter
that is required to be alleged with particularity, the remedy by
the other party is to file a motion for BOP. In this case, no m
for BOP was filed. However, the case was considered as a
nuisance case and case was thrown out because precisely,
there was nothing in the complaint that would show that his
signature was forged. His allegations that there was
fraudulent machinations employed by the other party was not
even substantiated by any specific allegations.
RULE 13: FILING AND SERVICE OF PLEADINGS,
JUDGMENT AND OTHER PAPERS
SECTION 1: COVERAGE
“File” or “Filing” ® to the Court;
“Serve” or “Service” ® to the other party
The rule is to serve first to the other party before you file in
court. The court will not receive pleading, motions, and other
court submissions unless it is shown that you have first
served a copy thereof to the opposing counsel.
What should be filed?
Pleadings, motions, and other court submissions, as well as
their service, except those for which a different mode of
service is prescribed.
SECTION 2. FILING AND SERVICE
Filing
The act of submitting the pleading or other paper to the
court.
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Service
from time to time in order to be informed of the progress
of his case.
The act of providing a party with a copy of the pleading or
any other court submissions.
Example:
NOTE: If a party has appeared by counsel, service upon
him shall be made upon his counsel unless served upon
the party himself is ordered by the trial court. (UP v. Dizon,
G.R. No. 171182, August 23, 2012; Garrucho v. CA, G.R.
No. 143791, January 14, 2007).
Q: A is one of the three counsels of X, and was designated
as the lead counsel. Counsel B received the pleading on
January 2, while counsel C received it on January 5, and lead
counsel A received it on January 6. What is the period of time
within which to file an appeal?
In the case of Bracero v. Arcelo, G.R. No. 212496, March
18, 2015, the Supreme Court stated that notice sent
directly to client is not notice in law. Moreover, in the same
case, the Court stated that when litigants are represented
by a counsel, they should not expect that all they need to
do is sit back, relax, and await the outcome of their case.
Equity aids the vigilant, not those who slumber on their
rights, and a party should periodically keep in touch with
his counsel, check with the court, and inquire about the
status of his case.
A: It would be reckoned from the date that A received the
pleading even if he received it last, since he is the lead
counsel made in the court record, for purposes of counting
the period to appeal, it would be reckoned from A.
SECTION 3. MANNER OF FILING
How to file a pleading in court?
1.
There must be at least 4 copies:
1. Copy of the court;
2. Copy of the plaintiff;
3. Copy of the defendant; and
4. An extra copy.
Several parties, one counsel
Going to court and handing the pleading over. The clerk
of court shall endorse the date and hour of filing.
The date of filing of the pleading is the date of receipt of
the court. (Miranda v. Miranda, G.R. No. 179638, July 8,
2013)
2.
When several parties only have one counsel, the parties
are entitled only to one copy.
When there is only one party who has several counsels
or battery of lawyers, he is entitled only to one copy to be
served on the lead counsel, if one is designated, or to
any of them if there is no lead counsel.
Without a lead counsel being designated, notice to
anyone of the several counsels on record is equivalent to
notice to all and such notice starts the time, running for
appeal, not standing that the other counsels on record has
not received a copy of the decision (Philippine Ports
Authority v. Sargasso Construction, G.R. No. 146478,
July 30, 2004)
In the case of Garrucho v. CA, the counsel of record must
inform the court of his change of address, otherwise, the
service in his last address shall be deemed sufficient and
complete and that would bind the said parties. It is the
duty of a party-litigant to be in contact with his counsel
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Registered Mail
The party filing through the said mode is given a Registry
Return Card or a Registry Receipt with name of
recipient, signature, and date of receipt as proof that you
mailed it to the opposing party and to the court.
One party, several counsel
Lead counsel is entitled to receive a copy of every
documents. For the purpose of reckoning periods for the
submission of documents, it will be reckoned from the
receipt of the lead counsel of the document.
Personal
NOTE: 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. (Miranda v. Miranda, G.R. No. 179638, July 8,
2013)
Best proof of mailing: Registry Receipt Number
3.
Accredited Courier
The courier service must be “accredited” by the court.
The date of actual receipt of the courier is the date of
filing in court.
NOTE: If the courier is not accredited, the date of filing
of the pleading in court is the actual date of receipt of
the court of the pleading, and not the date of actual
receipt by the courier.
In the case of Miranda v. Miranda, the date of delivery of
the pleadings to a private letter-forwarding agency is
not to be considered as the date of filing thereof in the
court instead the date of actual receipt by the court is
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deemed the date of filing of that pleading. If a party files
through a courier, the courier has to be accredited.
4. Electronic Mail or Other Electronic Means
Requirements:
a. Such mode is with prior approval of the court;
and
b. The court is electronically-equipped.
The date of electronic transmission shall be considered
as the date of filing.
How to get the approval of the court?
By filing a Motion in Court seeking approval for the
pleadings and other submissions to be electronically
served.
SECTION 4. PAPERS REQUIRED
TO BE FILED AND SERVED
Every judgment, resolution, order, pleading subsequent
to the complaint, written motion, notice, appearance,
demand, offer of judgment or similar papers shall be filed
with the court, and served upon the parties affected.
SECTION 5. MODES OF SERVICE
What are the modes of serving a pleading? (PAREFO)
1.
2.
3.
4.
5.
6.
Personal service;
Accredited courier;
Registered mail;
Electronic mail;
Facsimile Transmission; and
Other electronic means.
NOTE: For purposes of electronic mail, facsimile
transmission or other electronic means, it has to be with
prior court approval and agreed upon by the parties.
Note: Ordinary mail and substituted service (Section 7
and 8) are also included as a mode of serving a pleading.
Example:
Q. On June 1, X received by ordinary mail the judgment
of the court, which was adverse to her. X did not file a
notice of appeal on June 16. One June 17, X went to court
to personally receive the copy of the judgment. On June
20, X filed notice of appeal. The judge denied the notice
of appeal on the ground that X filed her notice of appeal
beyond the reglementary period of 15 days. Is the court
correct?
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A. NO. Because in the first place, service by ordinary mail
of judgment is void because modes of service of
judgment is either personally, registered mail, or by
electronic means, thus the first service through ordinary
mail is improper. X filed her notice of appeal on time,
because it should be reckoned not from June 1, but from
June 17, the day when she went to the court and
personally asked for a copy, the date when she was
properly served a copy of the decision.
SECTION 6. PERSONAL SERVICE
What are the modes of personal service?
1. Personally delivering the copy to the party or the
party’s counsel, or authorized representative as
mentioned in the pleading.
2. Leaving the copy in the counsel’s office with his or her
clerk or person-in-charge.
3. Leaving the copy, between 8:00 am to 6:00pm, at the
party’s or counsel’s residence, if known, with a person
of sufficient age and discretion residing therein.
Make sure that there is evidence showing that the said
counsel received copy. Claim stamp marking should
likewise be on the copy of the court, because the court
will not receive the pleading without evidence showing
that it was first served on the opposing counsel.
Service of the petition on a party, when that party is
represented by a counsel of record, is a patent nullity and is
not binding upon a party wrongfully served. This rule,
however, is a procedural standard that may admit exceptions
when faced with compelling reasons of substantive justice
manifest in the petition and in the surrounding circumstance
of the case. (Republic v. Caguioa, et al., G.R. No. 174385,
February 20, 2013)
SECTION 7. SERVICE BY MAIL
Service by registered mail
Depositing a copy in the office in a sealed envelope, plainly
addressed to the party or his counsel, at his office, if known,
otherwise in his residence, with postage full paid, with
instruction to the postmaster to return the mail to the sender
ten (10) calendar days if undelivered.
In the case of Belen v. Chavez, G.R. No. 175334, March 26,
2008, the subsequent service on petitioners’ purported “last
known address” by registered mail is also defective
because it does not comply with the requisites under Section
7 of Rule 13 on service by registered mail. It contemplates
service at the present address of the party and not any
other address of the party. Therefore, service by registered
mail presupposes that the present address of the party is
known and if the person who receives the same is not the
addressee, he must be duly authorized by the former to
receive the paper on behalf of the party.
Service by ordinary mail
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Resorted to only if no registry service is available in the
locality of either the sender or the addressee, service may
be done by ordinary mail.
SECTION 8. SUBSTITUTED SERVICE
Substituted service of pleadings, is not the same as
substituted service of summon.
first notice was sent by the postmaster to the addressee. The
best evidence of that fact would be the certification from the
postmaster.
SECTION 9: SERVICE BY ELECTRONIC MEANS AND
FACSIMILE
Electronic means
When do you do a substituted service of pleadings?
1.
Only when there is a failure to serve the copy:
2.
1. By personal service and
2. By registered mail.
Made by sending an email to the party’s or counsel’s
electronic mail address; or
Made through other electronic means of
transmission as the parties may agree on, or upon
direction of the court.
Facsimile
There must be proof that these two modes failed.
1.
The best evidence to show that there was failure by
personal service is an affidavit, for example executed by
a liaison officer, saying that he or she went to the office of
the counsel, or residence of the party or the counsel, but
nobody was there to receive the pleading.
Made by sending a facsimile copy to the party’s or
counsel’s facsimile number
NOTE: Mode of service by electronic means and facsimile
shall only be made if the party concerned consents to such
mode and with prior approval of the court.
The best evidence to show that there was a failure by
registered mail is the marking of “Return to Sender.”
SECTION 10: PRESUMPTIVE SERVICE
Presumptive Service
And with the RTS and affidavit as proofs, you may go to
court and file with the clerk of court a motion saying that
you have availed of the two modes of personal service
and registered mail, but the services of the pleading were
unsuccessful and hence you resort to substituted service.
The service of the pleading is complete at the time of such
deliver.
In the case of Barrameda v. Castillo, G.R. No. L-27211, July
6, 1977, the Supreme Court stated that Sec. 7, Rule 13 of
the Rule provides that “Final orders or judgments shall be
served either personally or by registered mail x x x” Further,
Sec. 8 of the same Rule provides that “Personal service is
complete upon actual delivery x x x Service by registered
mail is complete upon actual receipt by the addressee; but if
he fails to claim his mail from the post office within five (5)
days from the date of notice of the postmaster, service shall
take effect at the expiration of such time”
In service by registered mail, the general rule is that service
is complete upon actual receipt by the addressee. The
exception is that when the addressee does not claim his mail
within five (5) days from the date of the first notice of the
postmaster, then the service takes effect at the expiration of
such time.
In the case of PNB v. CFI of Rizal, G.R. No. 63201, May 27,
1992, service by registered mail is complete upon actual
receipt by the addressee; but if he fails to claim his mail
from the post office within five (5) days from the date of
first notice of the postmaster, service shall take effect at
the expiration of such time. The fair and just application of
that exception depends upon the conclusive proof that the
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Addressee is from the same judicial region of the court where
the case is pending:
•
There is presumptive notice of a court setting if it
appears on the records to have been mailed at least 20
calendar days prior to the scheduled date of hearing.
Addressee is from outside the judicial region of the court where
the case is pending:
•
Mailed at least 30 calendar days prior to the scheduled
date of hearing.
NOTE: Under this provision, the court is the one sending notice
to the parties.
SECTION 11: CHANGE OF ELECTRONIC MAIL
ADDRESS OR FACSIMILE NUMBER
If a party wishes to change his or her e-mail address or
facsimile number while the action is pending must:
1. File within 5 calendar days, a notice of change of
e-mail address or facsimile number with the court;
and
2. Serve the notice on all other parties.
SECTION 12: ELECTRONIC MAIL AND FACSIMILE
SUBJECT AND TITLE OF PLEADINGS AND OTHER
DOCUMENTS
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Prescribed format:
1. Case number
2. Case title and pleading
3. Order or document title
NOTE: The title of each electronically-filed or served
pleading or other document, and each submission served
by facsimile shall contain the sufficient information to
enable the court to ascertain from the title:
a. The party or parties filing or serving the paper;
b. Nature of the paper;
c. The party or parties filing or serving the paper; and
d. The nature of the relief sought.
SECTION 13: SERVICE OF JUDGMENTS, FINAL
ORDERS OR RESOLUTIONS
How served:
1. Personally; OR
2. Registered mail.
NOTE: Judgments, Final Orders or Resolutions may also
be served through accredited courier or by publication,
provided the requirements for such mode are complied
with.
Upon ex parte motion of any party in the case, a copy of
the judgment, final order, or resolution may be delivered
by an accredited courier at the expense of such party.
When to serve such judgments, final orders or
resolution by publication:
1. When a party summoned by publication failed to
appear in the action, judgments, final orders or
resolutions against him or her.
2. It shall be at the expense of the prevailing party.
1.
2.
3.
4.
Initiatory pleadings and initial responsive pleadings,
such as an answer;
Subpoenae, protection orders, and writs;
Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
Sealed and confidential documents or records.
NOTE: HOWEVER, they may be filed or served through
other means, upon express permission from the court.
RULE 13, SECTION 15: COMPLETENESS OF
SERVICE
MODE OF
SERVICE
Personal
Service
GR: Upon the expiration of ten (10)
calendar days after mailing.
Ordinary Mail
Registered
Mail
Accredited
Courier
Accredited courier
A courier duly accredited by the Supreme Court. To
determine whether a courier is an accredited, it is best to
inquire upon the court who is an accredited courier.
NOTE: Service by ORDINARY MAIL is not prescribed
under the rules thus, period of succeeding motions which
may be filed after judgments shall not run. Service by
ordinary mail is applicable only in case of service of
pleadings, not to judgments, decisions, and orders of the
court.
SECTION 14: CONVENTIONAL SERVICE OR FILING
OF ORDERS, PLEADINGS, AND OTHER
DOCUMENTS
There are pleadings and other documents which must be
filed or served personally or by registered mail, and not
electronically:
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WHEN SERVICE IS DEEMED
COMPLETE
Upon actual delivery.
Electronic
Service
Facsimile
Transmission
XPN: Unless the court otherwise
provides.
1. Upon actual receipt by the
addressee, or
2. After five (5) calendar days from the
date he or she received the first
notice of the postmaster, whichever
is earlier.
1. Upon actual receipt by the
addressee, or
2. After at least two (2) attempts to
deliver by the courier service, or
3. Upon the expiration of five (5)
calendar days after the first attempt
to deliver, whichever is earlier.
1. At the time of the electronic
transmission of the document, or
2. When available, at the time that the
electronic notification of service of
the document is sent.
NOTE: Electronic service is not effective
or complete if the party serving the
document learns that it did not reach the
addressee or person to be served.
Upon receipt by the other party, as
indicated in the facsimile transmission
printout.
Principle of Constructive Service
In service by registered mail, the general rule is that
service is complete upon actual receipt by the addressee.
The exception is that when the addressee does not claim his
mail within five days from the date of the first notice of the
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CIVIL PROCEDURE REVIEWER
postmaster, then the service takes effect at the expiration of
such time.
As illustrated by Justice Cesar Bengzon, if the first notice is
received by the addressee on December 1, and he gets his
mail on December 3, the service is complete on December
3, the date of the actual receipt (general rule).
But if the addressee gets his mail only on December 15,
service is deemed complete on December 6 or five days from
December 1, the date of the first notice (exception)
(Barrameda v. Castillo, G.R. No. L-27211, July 6, 1977).
Conclusive Proof of Postmaster’s Notice is Required
for the Principle of Constructive Service to Apply
run after five days from the first notice given by the
postmaster. A party is deemed to have received and to have
been notified of the judgment at that point (Quelnan vs. VHF
Philippines, G.R. No. 138500, September 16, 2005).
SECTION 16: PROOF OF FILING
MANNER
OF FILING
Personal
Filing
Bearing in mind that the exception in service by registered
mail refers to constructive service, it is evident that the fair
and just application of that exception depends upon
conclusive proof that a first notice was sent by the
postmaster to the addressee.
Therefore, to obviate injustice, it is incumbent upon a party,
who relies on constructive service or who contends that his
adversary was served with a copy of a final order or judgment
upon the expiration of five days from the first notice of
registered mail sent by the postmaster to prove that first
notice was sent and delivered to the addressee. A
certification from the postmaster would be the best evidence
of that fact (Grafil vs. Feliciano L-27156, June 30, 1967, 20
SCRA 616).
The mailman's testimony may also be adduced to prove that
fact, as was done in Aldecoa vs. Hon. Arellano and
Siguenza, 113 Phil. 75, 78.
The mere exhibition in court of the envelope containing the
unclaimed mail is not sufficient proof that a first notice was
sent.
NOTE: The postmaster's certification as to the sending of the
first notice "should include the data not only as to whether or
not the corresponding notices were issued or sent but also
as to how, when and to whom the delivery thereof was
made." (Hernandez vs. Navarro, G. R. No. L-28296,
November 24, 1972)
Presumption of Regularity of Performance of Duty by the
Postmaster
As between the denial of the petitioners' counsel that he
received the notice of the registered mail and the
postmaster's certification that said notices were sent to him,
the postmaster's claim should prevail. The postmaster has
the official duty to send notices of registered mail and the
presumption is that official duty was regularly performed
(Aportadera, Sr. vs. Court of Appeals, G.R. No. 41358,
March 16, 1988).
Importance of the Principle of Constructive Service
The principle of constructive service is important because the
period to appeal or to file the necessary pleading begins to
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Registered
Mail
Accredited
Courier
Service
Electronic
Mail
Other
Authorized
Electronic
Means
PROOF OF FILING
If the pleading or any other court
submission is not in the record, but is
claimed to have been filed personally,
the filing shall be proven by the written
or stamped acknowledgement of its
filing by the clerk of court on a copy of
the pleading or court submission.
1. Registry receipt and
2. By the affidavit of the person who
mailed it, containing a full
statement of the date and place of
deposit of 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) calendar
days if not delivered
Affidavit of service of the person who
brought the pleading or other
document to the service provider,
together with the courier’s official
receipt and document tracking number
Affidavit of electronic filing of the filing
party accompanied by a paper copy of
the pleading or other document
transmitted or a written or stamped
acknowledgement of its filing by the
clerk of court
Affidavit of electronic filing of the filing
party accompanied by a copy of the
electronic acknowledgment of its filing
by the court
SECTION 17: PROOF OF SERVICE
MODE OF
SERVICE
PROOF OF SERVICE
Personal
Service
1. Written admission of the party
served, or
2. The official return of the server,
or
3. The affidavit of the party
serving, containing a
statement of the date, place,
and manner of service
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CIVIL PROCEDURE REVIEWER
Affidavit of the person mailing
stating
the
facts
showing
compliance with Section 7 of this
Rule.
Ordinary Mail
Registered Mail
Accredited
Courier Service
Electronic Mail,
Facsimile, or
Authorized
Electronic
Means of
Transmission
NOTE: 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 to the party’s counsel at his
or her office, if known, otherwise at
his or her residence, if known, with
postage fully pre-paid, and with
instructions to the postmaster to
return the mail to the sender after
ten
(10)
calendar
days
if
undelivered. If no registry service is
available in the locality of either the
sender or the addressee, service
may be done by ordinary mail.
1. Affidavit of the person mailing
stating the facts showing
compliance with Section 7 of
this Rule and
2. The registry receipt issued by
the mailing office
NOTE: 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.
Affidavit of service executed by the
person who brought the pleading or
paper to the service provider,
together with the courier’s official
receipt or document tracking
number
Affidavit of service executed by the
person who sent the e-mail,
facsimile, or other electronic
transmission, together with a
printed proof of transmittal
SECTION 18: COURT-ISSUED ORDERS AND OTHER
DOCUMENTS
The court may electronically serve orders and other
documents to the parties which shall have the same effect
and validity as provided in the rules.
A paper copy of the document electronically serve shall be
retained and attached to the record of the case.
NOTE: Sec. 18 should be read in relation to Sec. 13, Rule
13.
Sec. 13 provides the rules for the service of judgments, final
orders or resolution. Under the said provision, judgments,
final order or resolution shall be served either personally or
by registered mail. They may also be through an accredited
private courier upon filing of an ex parte motion and approval
of the court. They may also be served by publication if
summons was served through publication.
SECTION 19: NOTICE OF LIS PENDENS
“Pending suit” or “Pending litigation”
Applicability
Actions affecting the title or the right of possession of real
property (real action).
The plaintiff or 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 (Par. 1, Sec.
19, Rule 13).
Who may file:
1.
2.
Plaintiff – at the time of the filing of the complaint;
and
Defendant – at the time of filing of answer (when
affirmative defense is claimed in such answer, or at
any time afterwards). (Villanueva v. CA, G.R. No.
117108, November 5, 1997)
NOTE: When the persons who filed the notice is not the
original parties to the case, but are mere movants, they do
not comply with the requirements under Sec. 76, PD 1529,
and thus the notice is not registrable (Heirs of Lopez, Sr. v.
Enriquez, G.R. No. 146262, January 21, 2005).
A notice of lis pendens is not and cannot be sought as a
principal action for relief. It is a mere incident and does not
affect the merits since it serves merely as an advise or
warning to other persons (AFP Mutual Benefit Association,
Inc. v. CA, G.R. No. 104769, March 3, 2000).
Contents of Notice
1. Name of the parties;
2. Object of the action or defense; and
3. Description of the property (Par. 1, Sec. 19, Rule
13).
Constructive Notice
There is constructive notice to the purchaser or encumbrancer
of the property of the pendency of the action only from the time
of filing of such notice for record (Par. 1, Sec. 19, Rule 13).
Cancellation
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CIVIL PROCEDURE REVIEWER
2.
Notice of lis pendens may be cancelled only upon order
of the court after showing that:
1. The notice is for the purpose of molesting the
adverse party; or
2. The notice is not necessary to protect the rights
of the party who caused it to be recorded. (Par. 2,
Sec. 19, Rule 13)
3. By the Register of Deeds upon verified petition of
the party who caused the registration (Sec. 77,
PD No. 1529).
NOTE: Petition to cancel the notice should be done during
the pendency of the case and not when it is already final
and executory.
Cases where notice is proper
1.
2.
3.
4.
Action to Recover Possession of Real Estate;
Action to Quiet Title;
Action for Partition; and
Any other proceedings of any kind in Court
directly affecting the title to the land or the use or
occupation or buildings thereon.
Cases where notice is not proper
1.
2.
3.
4.
Preliminary Attachments;
Probate of Wills;
Levies on Execution;
Administration of Estate of Deceased Persons;
and
5. Proceedings the subject of which is recovery of a
money judgment (Heirs of Lopez, Sr. v. Enriquez,
G.R. No. 146262, January 21, 2005).
For actions in rem and quasi in rem:
(a) Not to acquire jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of
due process
(b) Jurisdiction over the defendant is not required
(c) The court acquires jurisdiction over an action as
long as it acquires jurisdiction over the res that is
the subject matter of the action.
SEC. 1: CLERK TO ISSUE SUMMONS
By whom issued
By the Clerk of Court.
When issued
GR: The court shall, within five (5) calendar days from
receipt of the initiatory pleading and proof of payment of the
requisite legal fees, direct the clerk of court issue the
corresponding sum (Sec. 1, Rule 14) The issuance of
summons is not discretionary on the part of the court or the
clerk of court, but is a mandatory requirement. (Riano, 2016)
XPN: When complaint is on its face dismissible under
Section 1, Rule 9.
Q: When is the complaint dismissible on its face?
A: When it appears on the face of the complaint that:
1. Court has no jurisdiction over the subject matter
2. Action is barred by Res Judicata
3. Action is barred by Litis Pendentia
4. Action is barred by Prescription (Sec.1, Rule 9)
SECTION 2: CONTENTS
1.
Summons shall be:
a. Directed to the defendant;
b. Signed by the clerk of court under seal.
2.
Summons shall contain:
a. The name of the court, and the names of
the parties to the action ;
b. When authorized by the court upon ex
parte motion, an authorization for the
plaintiff to serve summons to the defendant
c. A direction that the defendant answer
within the time fixed by the ROC, and
d. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
RULE 14: SUMMONS
Summons is the writ by which the defendant is notified of
the action brought against him (Licaros v. Licaros, G.R.
No. 150656, April 29, 2003)
It is a notice to the defendant that a particular person
named therein has commenced an action against him in
a particular court (Riano, 2016).
Purpose of summons
1.
For actions in personam:
(a) To acquire jurisdiction over the person of the
defendant in a civil case
(b) To give notice to the defendant that an action has
been commenced against him.
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3. The following shall be attached to the original and
each copy of the summons:
a. A copy of the complaint, and
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CIVIL PROCEDURE REVIEWER
b.
An order for appointment of guardian ad
litem, if any (Sec.2, Rule 14)
D. IF SUMMONS IS RETURNED WITHOUT BEING
SERVED ON ANY OR ALL DEFENDANTS:
Q: What if the complaint was not attached to the
summons, is the summons improperly served?
The court shall order the plaintiff to cause the service
of summons by other means available under the
Rules. Failure to comply with the order shall cause the
dismissal of the initiatory pleading without prejudice
(Sec.3, Rule 14).
A: No. The defendant may still go to the court and get a
copy of the complaint. A defendant is still bound to comply
with the summons even if service was made without
attaching a copy of the complaint.
SECTION 3: BY WHOM SERVED
The summons may be served by the:
1.
2.
3.
4.
Sheriff
Deputy of the sheriff.
Other proper court officer.
Plaintiff, provided that:
a. There must be failure of service of summons by
the sheriff or his deputy
b. Plaintiff must be authorized by the court (Sec.3,
Rule 14)
c. His authority to serve summons must be stated
in the summons itself (Sec.2(b), Rule 14).
A. If the summons are to be served WITHIN THE
TERRITORIAL JURISDICTION of the court where
the case is pending, the plaintiff must comply with the
abovementioned requirements.
On the other hand, in cases where summons is to be
served OUTSIDE THE JUDICIAL REGION of the
court where the case is pending, the plaintiff needs
ONLY be authorized to cause the service of summons
(Sec.3, Rule 14).
B. IF THE PLAINTIFF IS A JURIDICAL ENTITY, it
shall:
1. Notify the court in writing and name its authorized
representative therein;
2. Attach a board resolution stating that such
representative is duly authorized (Sec. 3, Rule
14).
C. IF THE PLAINTIFF MISREPRESENTS THAT THE
DEFENDANT WAS SERVED SUMMONS:
1. The case shall be dismissed with prejudice;
2. The proceedings nullified; and
3. The plaintiff shall be meted with appropriate
sanctions (Sec.3, Rule 14).
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SECTION 4: VALIDITY OF SUMMONS
GR: Summons shall remain valid until duly served.
XPN: Unless it is recalled by the court.
Alias summons
In case of loss or destruction of summons, the court may, upon
motion, issue an alias summons. (Sec. 4, Rule 14)
Q: Is there a difference between summons and alias
summons?
A: None. They are the same. The only time an alias summons
is issued is when the original summons is lost destroyed, cannot
be found, or returned unserved.
Q: When summons are improperly served, can the courts
dismiss the case outright due to lack of jurisdiction over the
person of the defendant?
A: Based on jurisprudence, the plaintiff will only be asked to reserve the summons.
A case should not be dismissed simply because an original
summons was wrongfully served. An alias summons can be
actually served on said defendant. It is not pertinent whether
the summons is designated as an “original” or an “alias”
summons as long as it has adequately served its purpose. What
is essential is that the summons complies with the requirements
under the Rules of Court and it has been duly served on the
defendant together with the prevailing complaint” (BPI v. Sps.
Ireneo, G.R. No.169116 March 28, 2007; The Phil. American
Life And General Insurance Co. v. Breva, G.R No. 147937,
November 11, 2004).
Summons in an amended complaint; when needed
In the case of Pan Asiatic Travel Corporation v. C, G.R. No. L62781, August 19, 1988, the Supreme Court ruled that if the
defendant appeared in the action prior to the amendment,
service of the amended complaint introducing new cause of
action is sufficient even if no new summons is served. On the
other hand, if the defendant had not yet appeared, a new
summons must be served upon him as regards the amended
complaint. If no new summons was served the court did not
acquire jurisdiction over the person of the defendant.
Amendment of the complaint will not render ineffective the
summons already served on the parties by virtue of the original
complaint (Philippine American Life and General Insurance, Co.
v. Breva, G.R. No. 147937, November 11, 2004).
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CIVIL PROCEDURE REVIEWER
MODES OF SERVICE
1.
2.
3.
4.
Service in person on defendant
Substituted Service
Service by Publication
Extraterritorial Service
SECTION 5: SERVICE IN PERSON ON DEFENDANT
Personal service; how done:
1. By handing a copy thereof to the defendant in
person and informing the defendant that he or
she is being served, or
2. If he or she refuses to receive and sign for it, by
leaving the summons within the view and in the
presence of the defendant or by tendering it (Sps.
Manuel v. Ramon Ong, G.R. No. 205249 October
14, 2014)
PERSONAL SERVICE OF
PLEADINGS
(SEC. 6, RULE 13)
Court submissions may be
served:
1. By delivering personally
a copy to the party or his
counsel or to their
authorized
representative named in
the
appropriate
pleading/motion
2.
3. By leaving a copy in the
counsel’s office with his
clerk or with a person
having charge thereof
PERSONAL
SERVICE OF
SUMMONS
(SEC. 5, RULE 14)
A: Yes. The essence of personal service is the handing
or tendering of a copy of the summons to the defendant
himself, wherever he may be found; that is, wherever he
may be, provided he is in the Philippines (Sansio
Philippines Inc. vs. Sps. Mogol, G.R. 177007, July 14,
2009).
Personal service of summons has nothing to do with the
location where summons is served. A defendant's
address is inconsequential. Rule 14, Section 6 of the 1997
Rules of Civil Procedure is clear in what it requires:
personally handing the summons to the defendant (albeit
tender is sufficient should the defendant refuse to receive
and sign). What is determinative of the validity of personal
service is, therefore, the person of the defendant, not the
locus of service (Sps. Manuel v. Ramon Ong, G.R. No.
205249 October 14, 2014).
SECTION 6: SUBSTITUTED SERVICE OF SUMMONS
When allowed; and how done:
If, for justifiable causes, the defendant cannot be served
personally after at least three (3) attempts on two (2) different
dates, service may be effected:
1.
Summons is served
to the defendant in
person.
4. 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 8 a.m. and
6 p.m., at the party’s or
counsel’s residence, if
known, with a person of
sufficient
age
and
discretion then residing
therein
Q: Can the defendant be served summons in places
other than the address that was stated in the
summons and the complaint?
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2.
3.
4.
By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age
and of sufficient discretion residing therein;
By leaving copies of the summons at the defendant's
office or regular place of business with some competent
person in charge thereof. A competent person includes,
but is not limited to, one who customarily receives
correspondences for the defendant;
By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any
of the officers of the homeowners’ association or
condominium corporation, or its chief security officer in
charge of the community or the building where the
defendant may be found; and
By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court.
Requisites:
When resorting to substituted service, the following
statutory requirements must be strictly, faithfully, and fully
observed:
1. Indicate the impossibility of service of summons
within a reasonable time;
2. Specify the efforts exerted to locate the
defendant; and
3. State that the summons was served upon:
a. A person of sufficient age and discretion
who is residing in the address, or
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CIVIL PROCEDURE REVIEWER
b. A person in charge of the office or regular
place of business, of the defendant
4. It is likewise required that the pertinent facts
proving these circumstances be stated in the
proof of service or in the officer’s return.
Failure to comply with this rule renders absolutely void
the substituted service along with the proceedings taken
thereafter for lack of jurisdiction over the person of the
defendant (Sandoval v. HRET, G.R. No. 149380, July 3,
2000).
Residence
The place where the person named in the summons is
living at the time of when the service is made, even though
he may be temporarily out of the country at that time
(Venturanza v. CA, G.R. No. 77760, December 11, 1987)
Must be the one managing the office or business of
defendant, such as the president or manager; and such
individual 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 (Prudential Bank v. Magdamit,
G.R. No. 183795, November 12, 2014).
Summary; How summons is served – sections. 5-17
I.
1.
RESIDING IN THE PHILIPPINES
Personal Service
2.
PRISONERS
Service shall be effected upon him or her by the officer
having the management of such jail or institution who is
deemed as a special sheriff for said purpose (Sec.8,
Rule 14).
3.
MINORS/ INCOMPETENT
Service of summons shall be made upon him or her
personally and on his or her legal guardian if he or she
has one, or if none, upon his or her guardian ad litem
whose appointment shall be applied for by the plaintiff
(Sec.10, Rule 14).
4.
SPOUSES
When spouses are sued jointly, service of summons
should be made to each spouse individually (Sec.11,
Rule 14).
Person of sufficient discretion
"Discretion" is defined as the ability to make decisions
which represent a responsible choice and for which an
understanding of what is lawful, right or wise may be
presupposed.
Thus, to be of sufficient discretion, such person must
know how to read and understand English to comprehend
the import of the summons, and fully realize the need to
deliver the summons and complaint to the defendant at
the earliest possible time for the person to take
appropriate action. Thus, the person must have the
"relation of confidence" to the defendant, ensuring that the
latter would receive or at least be notified of the receipt of
the summons (Prudential Bank v. Magdamit, G.R. No.
183795, November 12, 2014).
Competent person
To be a "competent" person to receive the summons
means that he should be "duly qualified" and "having
sufficient capacity, ability or authority." The rule
presupposes that a relation of confidence exists
between the person with whom the copy of the process is
left and the defendant and, therefore, assumes that such
person will deliver the process to defendant or in some
way give him notice thereof. (Sandoval v. HRET, G.R. No.
149380, July 3, 2000).
A competent person includes, but is not limited to, one
who customarily receives correspondences for the
defendant e.g. secretary. (Sec. 6, Rule 14 of the New
Rules)
Person in charge
To be "in charge" means to have "care and custody of,
under control of, or entrusted to the management or
direction of." (Sandoval v. HRET, G.R. No. 149380, July
3, 2000).
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UPON NATURAL PERSONS
Q: Complaint for foreclosure of mortgage was filed
against the spouses Ernesto and Teresa Biaco. Only
Ernesto received the summons. Due to default, Sheriff
was ordered to sell the mortgaged lot at public auction
in favor of PCRB. However, because the amount of the
property sold at public auction was insufficient to cover
the full amount of the obligation, two notices of levy
against properties registered under the name of Teresa.
Teresa sought the annulment of the RTC decision
asserting that the trial court failed to acquire jurisdiction
because summons were served on her through her
husband without any explanation as to why personal
service[to her] could not be made. Did the court acquire
jurisdiction over the person of Teresa in the deficiency
judgment?
A: NO. The trial court went beyond its jurisdiction over the res
and rendered a personal judgment against the spouses Biaco.
In this case, while the trial court acquired jurisdiction over the
res, its jurisdiction is limited to a rendition of judgment on the res
[Foreclosure judgment]. It cannot extend its jurisdiction beyond
the res and issue a judgment enforcing petitioner’s personal
liability [Deficiency Judgment on Teresa’s property] In doing so
without first having acquired jurisdiction over the person of
petitioner, as it did, the trial court violated her constitutional right
to due process, warranting the annulment of the judgment
rendered in the case].
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CIVIL PROCEDURE REVIEWER
5. UNKNOWN DEFENDANTS OR WHEREABOUTS
ARE UNKNOWN (Sec.16, Rule 14)
In any action where:
7. RESIDENTS TEMPORARY OUTSIDE THE PH (Sec.
18, Rule 14)
a. The defendant is designated as an unknown
owner or
b. Whenever his or her whereabouts are unknown
and cannot be ascertained by diligent inquiry
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
a.
b.
Service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in
such places and for such time as the court may order.
c.
NOTE: Defendant must answer within a reasonable time
which shall not be less than 60 calendar days to be
specified in the order granting the leave of court. (Sec.16,
Rule 14)
d.
6. EXTRATERRITORIAL (Sec.17, Rule 14)
When allowed:
a. When the defendant does not reside and is not
found in the Philippines, and
b. The action
i.
Affects the personal status of the plaintiff
or
ii.
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
iii.
In which the relief demanded consists,
wholly or in part, in excluding the
defendant from any interest therein, or
iv.
4. The property of the defendant has
been attached within the Philippines
(Sec. 17, Rule 14).
Service may, by leave of court, be effected out of the
Philippines:
i.
ii.
iii.
iv.
By personal service as under Sec. 6,
Rule 14, or
As provided for in international
conventions to which the Philippines is a
party
By publication in a newspaper of general
circulation in such places and for such
time as 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
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II.
By personal service as under Sec. 6, Rule 14, or
As provided for in international conventions to which
the Philippines is a party
By publication in a newspaper of general circulation
in such places and for such time as 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.18, Rule 14).
UPON DOMESTIC CORPORATIONS
Service may be made on the:
1.
2.
3.
4.
5.
6.
7.
President,
Managing Partner,
General Manager,
Corporate Secretary,
Treasurer, Or
In-House Counsel of the corporation wherever they
may be found, or
In their absence or unavailability, on their
secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the
receiver or liquidator, as the case may be.
Should there be a refusal on the part of the persons abovementioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under
Section 6 of this Rule (Sec 12, Rule 14).
III.
UPON FOREIGN CORPORATION
Service may be made:
1. When the defendant is a foreign private juridical
entity which has transacted or is doing business
in the Philippines, as defined by law
a. Upon the resident agent; or
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CIVIL PROCEDURE REVIEWER
b.
If there be no such agent, on the government
official designated by law to that effect, or
c. On any of its officers or agents, directors or
trustees within the Philippines
NOTE: Where service of summons is made on the
government official designated by law to receive the
same, the answer shall be filed within sixty (60) calendar
days after receipt of summons by such entity (Sec.2, Rule
11).
2. When the defendant is NOT registered in the
Philippines or has no resident agent, Service may
be effected, with leave of court, outside the
Philippines through the following means:
Defendant
Public Corporations:
(Sec. 15, Rule 14)
• Republic of the
Philippines
• Province, city or
municipality, or like
public corporations
-
On the Solicitor
General
Effected
on
its
executive head, or
on such officer or
officers as the law or
the court may direct
NOTE:
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;
Service
1.
If defendant is Republic of Philippines –
summons is served upon Solicitor General
2.
If defendant is Province – summons is
served upon governor
If defendant is city – summons is served
upon mayor
If defendant is municipality – summons is
served upon mayor
If defendant is barangay – summons is
served upon the mayor still. Barangay is a
component of a city or municipality.
3.
4.
5.
V.
UPON AN ENTITY WITHOUT JURIDICAL
PERSONALITY
When applicable:
NOTE: There is no service of summons solely by
registered mail except as an additional requirement
to service by publication. Where service is made by
publication, a copy of the summons and order of the court
shall be sent by registered mail to last known address of
defendant
c.
By facsimile;
d. By electronic means with the prescribed
proof of service; or
e. By such other means as the court, in its
discretion, may direct.
IV.
UPON PUBLIC CORPORATIONS
When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case
of a province, city or municipality, or like public
corporations, service may be effected on its executive
head, or on such other officer or officers as the law or the
court may direct.
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1.
2.
Persons are associated in an entity without
juridical personality, and
They are sued under the name by which
they are generally or commonly known
Service may be effected upon all the defendants by serving
upon any one of them, or the person in charge of the office
or place of business maintained in such name (Sec. 7, Rule
14).
Special appearance; duty of the counsel
Where the summons is improperly served and a lawyer
makes a special appearance on behalf of the defendant to,
among others, question the validity of service of summons,
the counsel shall be deputized by the court to serve
summons on his or her client (Sec.13, Rule 14)
Summons by publication
In the case of Santos v. PNOC Exploration, G.R. No.
170943, September 23, 2008, the rule stating that
summons by publication applies only in actions in rem and
quasi in rem was the old rule. The new rule expressly
provides that it now applies to any action (in rem, quasi
in rem, in personam).
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Summons by publication is proper in any action
provided:
a. Where the identity or whereabouts of the
defendant are unknown
b. When the defendant is a resident temporarily out
of the Philippines
NOTE: Both apply to any action which necessarily
includes an action in personam.
Defendant not
residing and
cannot
be
found in the
Philippines
(Sec. 17, Rule
14)
RECOGNIZED MODES OF SERVICE:
RESIDENT
NON-RESIDENT
In
person
on
the Personal
service
of
defendant under Sec 5, summons in the state is
Rule 14. In case where essential
to
the
the defendant cannot be acquisition of jurisdiction
served
within
a over his person. This is
reasonable
time, the only way of acquiring
substituted service will jurisdiction
over
the
apply, but not summons person if he does not want
by publication. Exceptions to voluntarily appear.
were provided above.
XPN: when the defendant
is a foreign private
juridical
entity
not
registered or with no
resident agent in the
Philippines. (Sec. 14,
Rule 14)
Hierarchy of rules in the service of summons:
1) Diligent efforts to serve the defendant in person
must be resorted to.
2) When the summons cannot be served in person
on the defendant within a reasonable period of
time, then substituted service of summons may
be availed of.
3) If the defendants whereabouts are unknown and
cannot be ascertained with diligent inquiry, within
90 calendar days from the commencement of the
action, summons by publication may now be
availed of (Borlongan v. Banco de Oro, G.R. No.
217617, April 5, 2017).
DEFENDANT
Service upon
defendant
whose
identity
or
whereabouts
are unknown
(Sec. 16, Rule
14)
ACTION (IN
REM, IN
PERSONAM,
OR QUASI IN
REM)
Any action
SERVICE OF
SUMMONS
With
leave
of
court,
by
publication in a
newspaper
of
general circulation
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Residents
temporarily
out of the
Philippines
(Sec. 16, Rule
14)
In rem or quasi in
rem, that will
justify
the
application
of
extraterritorial
service
of
summons
in
actions involving
a nonresident:
1. Actions
that
affect
the
personal
status of the
plaintiff;
2. Actions which
relate to, or
the
subject
matter
of
which
is
property within
the
Philippines, in
which
the
defendant
claims a lien or
interest, actual
or contingent;
3. Actions which
the
relief
demanded
consists,
wholly or in
part,
in
excluding the
defendant
from
an
interest in the
property
located in the
Philippines;
and
4. When
the
defendant’s
property has
been attached
in
the
Philippines.
Any action
All of which require
prior leave of court:
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 shall be
sent
by
registered mail to
the last known
address of the
defendant; or
3. In any manner
the court may
deem sufficient.
1. By
personal
service;
2. By publication in
a newspaper of
general
circulation
in
such places and
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CIVIL PROCEDURE REVIEWER
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
3. In any manner
the court may
deem sufficient.
NOTE:
If
a
resident is out of
the
country
temporarily,
he
cannot
be
expectedly served
within
the
reasonable time.
Hence,
this
constitutes
the
operative fact that
triggers
the
application
of
substituted service
or Sec. 6, Rule 14.
SECTION 19 : LEAVE OF COURT
Leave of Court
days from issuance of summons by the clerk of court and
receipt thereof to complete the service.
Within 5 Calendar Days from service of summons –
The server (sheriff or process server, or person
authorized by the court) shall file with the court and serve
a copy of the return to the plaintiff’s counsel
(personally/registered mail/electronic means authorized
by the Rules).
If substituted service was effected, the return shall
state the following:
1. Impossibility of personal service within a period of
30 calendar days from issue and receipt of
summons;
2. Date and time of the 3 attempts on at least 2
different dates to cause personal service and
details of the inquiries made to locate the
defendant; and
3. Name of the person who received the substituted
summons in accordance with the provisions of
Section 6(a),(b), and (c) of who may receive the
summons.
NOTE: If all of the enumeration above are present in the
sheriff’s return, presumption of regularity will arise
(Paramount Insurance Corporation v. Japzon, G.R. No. L68037, July 29, 1992).
NOTE: In cases wherein a client forgets the details of how
summons was served to him or her, you should go to the
court to get the Sheriff’s Return. A Sheriff’s Return will tell
you how summons was effected. It will serve as the best
evidence as to how summons was effected by the server.
SECTION 21: PROOF OF SERVICE
Any application to the court under this Rule for leave to
effect service in any manner for which leave of court is
necessary shall be made:
1. By motion in writing; and
2. Supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application.
NOTE: Prior to the A.M. No. 19-10-20-SC (2019
Proposed Amendments to the 1997 Rules of Civil
Procedure) this section was found in Section 17, Rule 4.
SECTION 20: RETURN
Return
Within 30 Calendar Days – The sheriff or process server,
or person authorized by the court shall have 30 calendar
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The proof of service of summons shall:
1. Made in writing by the server and shall set forth the
manner, place, and date of service
2. Shall specify:
a. Any papers which have been served with the
process; and
b. Name of the person who received the same; and
3. Be sworn to when made by a person other than a
sheriff or his or her deputy.
The amendments provide that if the summons was served by
electronic mail, the proof of service will be the printout of the
said e-mail along with the copy of the summons served, and the
affidavit of the person mailing.
SECTION 22: PROOF OF SERVICE BY PUBLICATION
If the service has been made by publication, service may
be proved:
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CIVIL PROCEDURE REVIEWER
1. By the affidavit of the publisher, editor, business
or advertising manager, to which affidavit a copy
of the publication shall be attached; and
NOTE: In the old Rules of Court, the “publisher” replaced
the words “printer, his foreman or principal clerk.”
2. 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.
SECTION 23: VOLUNTARY APPEARANCE
In the old Rules of Court, the inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant was NOT deemed a
voluntary appearance but in the amendments the word
“not” was removed.
Voluntary Appearance
A voluntary appearance cures the defective service of
summons wherein despite no service of summons or a
defective summons, the court will be able to acquire
jurisdiction over the person of the defendant.
Q: Chandumal failed to settle her obligation in a contract to
sell. Thus, PDB filed an action for judicial confirmation of
notarial rescission and delivery of possession. Substituted
summons was issued and served by the Sheriff to
Chandumal’s mother since she was always out of the house.
For failure to file an answer, PDB filed an ex parte motion to
declare Chandumal in default. Chandumal filed an Urgent
Motion to Set Aside Order of Default and Admit Attached
Answer maintaining that she did not receive summons.
Did the court acquire jurisdiction over Chandumal?
A: YES. Despite there being no valid substituted service of
summons, Chandumal voluntarily submitted to the
jurisdiction of the trial court through Voluntary Appearance.
When Chandumal filed an Urgent Motion to Set Aside Order
of Default and to Admit Attached Answer, she effectively
submitted her person to the jurisdiction of the trial court as
the filing of a pleading where one seeks an affirmative relief
is equivalent to service of summons and vests the trial court
with jurisdiction over the defendant's person.
It was ruled that the filing of motions to admit answer, for
additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for
reconsideration is considered voluntary submission to the
trial court's jurisdiction (Planters Development Bank vs.
Chandumal, G.R. No. 195619, September 5, 2012).
RULE 15: MOTIONS
SECTION 1: MOTION DEFINED
Motion
A motion is an application for relief other than by a
pleading (Rule 15, Sec. 1, RoC).
A motion is an application for something, such as:
1. Motion for postponement;
2. Motion for extension of time to file a pleading.
A motion is not a pleading but a collateral matter which
one seeks an application for.
Notice; Not Necessary
There is no need to furnish the adverse party of a notice
of a hearing. The 2019 Amendments deleted Sections 4
and 5 of Rule 15 of the 1997 Rules of Civil Procedure.
SECTION 2: MOTION MUST BE IN WRITING
GR: Motions must be in writing (Rule 15, Sec. 2, Par. 1,
RoC).
XPN: Motion may be made in open court or in the course
of a hearing or trial (Rule 15, Sec. 2, Par. 2, RoC).
Deciding on a Motion
The Judge, after giving the other party time to be heard
on the matter, is required to immediately rule on a motion
made in open court (Rule 15, Sec. 2, Par. 2, RoC).
When the motion is based on facts not appearing on
record, the court may hear the matter on affidavits or
depositions, but the court may direct the matter to be
heard wholly or partially on oral testimony or depositions
(Rule 15, Sec. 2, Par. 3, RoC).
Evidence may be presented for a motion, such as in a
motion for the issuance of a preliminary injunction.
SECTION 3: CONTENTS
A motion must:
1. State the relief sought to be obtained and the
grounds upon which it is based; and
2. Be accompanied by supporting affidavits and
other papers, if required by these Rules or
necessary to prove facts alleged. (Rule 15, Sec.
3, RoC).
SECTION 4: NON-LITIGOUS MOTIONS
Kinds of Motions
1. Non-litigious Motions (Rule 15, Sec. 4, RoC).
2. Litigious Motions (Rule 15, Sec. 5, RoC).
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CIVIL PROCEDURE REVIEWER
Non-litigious motions
5.
Motion for execution pending appeal;
6.
These are motions which the court may act upon without
prejudicing the rights of adverse parties are non-litigious
motions.
Motion to amend after a responsive pleading has been
filed;
7.
Motion to cancel statutory lien
Examples of Non-litigious Motions
8.
Motion for an order to break in or for a writ of
demolition;
9.
Motion for intervention;
1.
Motion for the issuance of an alias summons.
2.
Motion for extension to file answer
3.
Motion for postponement;
4.
Motion for the issuance of a writ of execution
5.
Motion for the issuance of an alias writ of execution
13. Motion to declare defendant in default; and
6.
Motion for the issuance of a writ of possession
14. Other similar motions (Rule 15, Sec. 5, Par. a, RoC).
7.
Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
8.
Other similar motions (Rule 15, Sec. 4, RoC).
Motion for the Issuance of an “Alias”
“Alias” means that one has already been issued but it was
damaged or lost for some reason. Hence, it is nonlitigious.
Deciding on a Non-litigious Motion
These motions will not be set for hearing and shall be
resolved by the court within five (5) calendar days from
receipt thereof.
Right to be Heard; Not Necessary
Non-litigious motions can be acted upon even without
giving the adverse party the right to be heard. These
motions can be granted without any issue as they will not
prejudice the rights of the other party.
SECTION 5: LITIGIOUS MOTIONS
Examples of Litigious Motions
Litigious motions include:
1.
Motion for bill of particulars;
2.
Motion to dismiss;
3.
Motion for new trial;
4.
Motion for reconsideration;
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10. Motion for judgment on the pleadings;
11. Motion for summary judgment;
12. Demurrer to evidence;
Service of Litigious Motions
All motions, so as to ensure their receipt by the other party, must
be served by:
1. Personal service;
2. Accredited private courier;
3. Registered mail; or
4. Electronic means (Rule 15, Sec. 5, Par. b, RoC).
Opposition to a Litigious Motion
The opposing party shall file his or her opposition to a litigious
motion within five (5) calendar days from receipt thereof. No
other submissions shall be considered by the court in the
resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or upon
expiration of the period to file such opposition (Rule 15, Sec. 5,
Par. c, RoC).
Right to be Heard; Necessary
Litigious motions must be acted upon only after giving the other
party the opportunity to be heard.
After the movant has submitted the motion, the other party must
be given a chance to be heard regarding the matter because it
will affect his rights.
Illustration
A filed a motion to dismiss on the ground that the court
does not have jurisdiction over the subject matter.
A need not set it for hearing and only needs to give notice
to the opposing counsel before submitting it to the court.
B, the other party, is given 5 days from receipt to file his
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CIVIL PROCEDURE REVIEWER
comment opposing the motion. A cannot reply to that
comment.
The court is tasked to resolve the motion from receipt of
the comment or expiration of the period.
SECTION 6: NOTICE OF HEARING ON LITIGIOUS
MOTIONS; DISCRETIONARY
Notice of Hearing; Discretionary
In the exercise of its discretion and if deemed necessary for
the resolution of the motion, the court may call a hearing on
the motion (Rule 15, Sec. 6, RoC).
The court may order for a clarificatory hearing, which is the
time when the parties will go to court.
Illustration: A motion to admit amended complaint.
Rule 10, Sec. 10, Rules of Court posits that you can amend a
complaint as a matter of right if you have not yet been served a
copy of the answer or a motion for summary judgement.
However, if an answer was already filed pursuant to the original
complaint, then the same can be amended only with leave of
court.
In filing the motion to admit the amended complaint, the reasons
thereof and a copy of the proposed amended complaint must be
included.
Amended Complaint and Amended Answer
If an amended complaint was attached and was only granted
more than a month after, the same shall be considered filed on
the day that it was submitted to the court. However, it is only
when the court approves of the amended complaint, that the
plaintiff will be required to submit an amended answer.
Notice of Hearing
The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing
(Rule 15, Sec. 6, RoC).
SECTION 7: PROOF OF SERVICE NECESSARY
No written motion shall be acted upon by the court without
proof of service pursuant to Sec. 5(b) of Rule 15.
The opposing counsel must be furnished a copy before a
motion can be submitted to court.
SECTION 8: MOTION DAY
Litigious Motions to be Heard on Friday; Exceptions
GR: The court’s hearing of a litigious motion shall be set on
a Friday (Rule 15, Sec. 8, RoC). Oral arguments will be
made by both parties with respect to their positions.
XPN: Except for motions requiring the court’s immediate
action.
Under the previous 1997 Rules of Civil Procedure, it is the
party that sets the hearing for a motion. Now, it is the court
that sets the hearing, only if necessary.
SECTION 11: FORM
The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation,
signature, and other matters of form (Rule 15, Sec. 11,
RoC).
Verification Required
There are motions that are required to be verified by the
Rules, such as a motion to set aside an order of default.
SECTION 12: PROHIBITED MOTIONS
The following motions shall not be allowed:
(a) Motion to dismiss;
Except on the following grounds:
1.
Lack of jurisdiction – the court has no jurisdiction
over the subject matter of the claim;
2.
Litis pendetia – there is another action pending
between the same parties for the same cause;
3.
Res judicata – the cause of action is barred by a
prior judgment or by the statute of limitations (Rule
15, Sec. 12, Par. a, RoC); and
4.
Lack of the certification against forum shopping.
SECTION 9: OMNIBUS MOTION
Subject to the provisions of Section 1 of Rule 9, a motion
attacking a pleading, order, judgment or proceeding must
include all objections available.
All objections not included shall be deemed waived (Rule
15, Sec. 9, RoC).
SECTION 10: MOTION FOR LEAVE
A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted
(Rule 15, Sec. 10, Par. 1, RoC).
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(b) Motion to hear affirmative defenses;
The court shall motu proprio resolve or conduct summary
hearing on affirmative defenses (Rule 8, Sec. 12, Pars. c
and d).
(c) Motion for reconsideration of the court’s action on the
affirmative defenses;
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CIVIL PROCEDURE REVIEWER
(d) Motion to suspend proceedings without a temporary
restraining order or injunction issued by a higher court;
(e) Motion for extension of time to file pleadings, affidavits
or any other papers
Except a motion for extension to file an answer as provided
by Rule 11, Sec. 11, because the extension of 30 days may
only be granted once.
(f) Motion for postponement intended for delay
Except on the following grounds:
1. Based on acts of God;
2.
Force majeure; or
3.
Physical inability of the witness to appear and
testify.
If the motion is granted based on such exceptions, the
moving party shall be warned that the presentation of its
evidence must still be terminated on the dates previously
agreed upon.
A written or oral motion for postponement must, at all times,
be accompanied by the original official receipt from the office
of the clerk of court evidencing payment of the postponement
fee under Section 21(b), Rule 141. This is to be submitted
either:
1. At the time of the filing of said motion; or
2.
Not later than the next hearing date.
The clerk of court shall not accept the motion unless
accompanied by the original receipt (Rule 15, Sec. 12, RoC).
Q: X filed a motion to dismiss on the ground of lack of
jurisdiction over the subject matter before the RTC, which
was denied. X filed a motion for reconsideration which was
also denied. Can X assail the denial of the motion to dismiss
via Rule 65 to the Court of Appeals?
A: YES. There is nothing in the rules that would prohibit you
from filing a motion for reconsideration for the denial of a
motion to dismiss on the ground of lack of jurisdiction over
the subject matter. Hence, X can assail the denial of the
motion to dismiss and the motion for reconsideration via Rule
65 of the Rules. Rule 65 is an original special civil action, it
is not an appeal. The pendency of the Rule 65 petition will
not automatically halt the proceedings of the main action.
X cannot file a motion to suspend proceedings in the RTC in
lieu of the pending Rule 65 proceedings in the CA. However,
if the CA issues a Temporary Restraining Order or a Writ of
Preliminary injunction, then the proceedings with the RTC
can be suspended.
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Illustrative Cases
The rules only allow a motion to dismiss once. In this
case, the defendant filed successive motions to dismiss,
under the guise of “supplemental motion to dismiss” which
is not only improper but also dilatory (Tung Ho Steel vs.
Ting Guan Trading, G.R. No. 182153, April 7, 2014).
It is a basic rule that a motion for extension of time to file
a pleading must be filed before the expiration of the period
sought to be extended. The court's discretion to grant a
motion for extension is conditioned upon such motion's
timeliness, the passing of which renders the court
powerless to entertain or grant it. Since the motion for
extension was filed after the lapse of the prescribed
period, there was no more period to extend (PNB vs.
Deang Marketing Corp., G.R. No. 17793, December 8,
2008).
SECTION 13: DISMISSAL WITHOUT PREJUDICE
An order granting a motion to dismiss or an affirmative
defense on the following grounds shall bar the refiling of
the same action or claim:
1. The cause of action is barred by a prior judgment
or by the statute of limitations;
2. The claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned or
otherwise extinguished; or
3. The claim on which the action is founded is
unenforceable under the provisions of the statute
of frauds.
The order granting the motion to dismiss or an affirmative
defense shall still be subject to the right of appeal.
Illustration
If the Motion to Dismiss is grounded upon the lack of
jurisdiction over the subject matter, the movant is allowed
to refile it to the proper court.
However, those mentioned in Section 13 cannot be
refiled, therefore the only remedy is to file an appeal.
RULE 17: DISMISSAL OF ACTIONS
SECTION 1: DISMISSAL OF ACTIONS
A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of a) the
Answer, or b) the Motion for summary judgment.
Upon such notice being filed, the court shall issue an
order confirming the dismissal (Rule 17, Sec. 1, RoC).
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CIVIL PROCEDURE REVIEWER
Withdrawal of a case is not automatic
An order by the court confirming the dismissal is required
before a case or complaint is deemed dismissed (Rule
17, Sec. 1, RoC).
NOTE: If a person files a second complaint without such
order of confirmation of dismissal of the first complaint
filed, may be held guilty of litis pendencia, and the second
case filed can be dismissed.
Dismissal by plaintiff as a matter of right
GR: Dismissal is without prejudice
XPN:
1. Unless otherwise stated in the notice
2. 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 (Rule 17, Sec. 1,
Rules of Court).
Two-dismissal rule
It applies when the plaintiff has:
1. Twice dismissed actions;
2. Based on or including the same claim; and
3. In a court of competent jurisdiction (Riano, 2016).
NOTE: The notice of dismissal operates as an
adjudication upon the merits (Rule 17, Sec. 1, RoC).
Q: A filed a complaint for the collection of a sum of money
against B on the ground of B’s failure to pay his debt
before the RTC. Instead of filing an Answer, B asked A
not to proceed with the case, provided that he will pay his
debt within one week. A agreed and then filed a Notice to
Dismiss the complaint pursuant to Sec. 1, Rule 17 of the
Rules of Court. However, B failed to pay his debt.
A then filed a second complaint against B. B again asked
A to dismiss the complaint with the promise that he will
already pay his debt. A gave B another chance, but B
again failed to pay his debt. This prompted A to file a third
complaint against B. Will the third complaint prosper?
A: NO. The third complaint will not prosper. In fact, the
Court may already dismiss the second complaint filed by
A, unless otherwise stated in the notice that 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 (Rule 17, Sec. 1, RoC).
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If the second complaint was dismissed without prejudice,
the same complaint can no longer be refiled. The second
dismissal will operate as an adjudication on the merits if
the third complaint filed is based on the same action or if
it includes the same claim.
SECTION 2: DISMISSAL UPON
MOTION OF PLAINTIFF
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 (Rule 17,
Sec. 2, RoC).
Effect on counterclaim
GR: The dismissal shall be without prejudice to the right
of the defendant to prosecute his or her counterclaim in a
separate action unless within fifteen (15) calendar days from
notice of the motion he or she manifests his or her preference
to have his or her counterclaim resolved in the same action.
XPN: Unless otherwise specified in the order (Rule 17,
Sec. 2, RoC).
NOTE: After the lapse of the 15 calendar days, the Court
could no longer entertain any motions filed thereafter. The
decision dismissing the complaint is final and executory and
has already attained finality. The Court no longer has
jurisdiction over the complaint.
Q: When will the dismissal become by way of motion if an
Answer had already been served?
A: What marks the loss by a plaintiff of the right to cause
dismissal of the action by mere notice is not the filing of the
defendant's answer with the Court (either personally or by
mail) but the service on the plaintiff of said answer or of a
motion for summary judgment.
“The filing of pleadings, appearances, motions, notices,
orders and other papers with the court,” according to Sec. 1,
Rule 13 of the Rules of Court, means the delivery thereof to
the clerk of the court either personally or by registered mail.
Service, on the other hand, signifies the delivery of the
pleading or other paper to the parties affected thereby
through their counsel of record, unless delivery to the party
himself is ordered by the court, by any of the modes set forth
in the Rules, i.e., by personal service, service by mail, or
substituted service (Go vs. Cruz, G.R. No. L-58986, April
17, 1989).
NOTE: If a counterclaim has been pleaded by a defendant
prior to the service upon him or her of the plaintiff's motion
for dismissal, the dismissal shall be limited to the complaint.
A class suit shall not be dismissed or compromised
without the approval of the court (Rule 17, Sec. 2, RoC).
SECTION 3: DISMISSAL DUE TO THE
FAULT OF THE PLAINTIFF
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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 or
her counterclaim in the same or in a separate action, if,
for no justifiable cause, the plaintiff fails:
1. To appear on the date of the presentation of his
or her evidence in chief on the complaint;
2. To prosecute his or her action
unreasonable length of time; or
for
an
3. To comply with these Rules or any order of the
court (Rule 17, Sec. 3, RoC).
GR: The dismissal is with prejudice because such dismissal
has the effect of an adjudication upon the merits.
XPN: Unless otherwise declared by the court (Rule 17, Sec.
3, RoC).
Q: The Court issued an order requiring the plaintiff to implead
indispensable parties. The plaintiff, however, did not implead
the indispensable parties. Can the complaint be dismissed
on the ground of failure to obey the order of the court?
A: Yes. Failure to implead indispensable parties does not
cause the dismissal of the complaint. It is the noncompliance of the court’s order that would cause the
complaint's dismissal (Domingo v. Scheer, G.R. No.
154745, January 29, 2004).
Q: Can a complaint be dismissed on the ground of the
plaintiff’s failure to implead a necessary party ordered by the
court?
A: No. Plaintiff’s failure to implead the necessary party
ordered by the court cannot cause the dismissal of the
complaint. Such failure will only result in a waiver under Sec.
9, Rule 3 of the Rules of Court.
NOTE: In Sec. 3, Rule 17, Rules of Court, the case is
dismissed on account of the plaintiff’s fault. Thus, this
dismissal is attributable to the plaintiff himself.
Sec. 4, Rule 17 of the Rules of Court shall apply to the
dismissal of any counterclaim, cross-claim, or third-party
complaint.
A voluntary dismissal by the claimant by notice as in Sec. 1,
Rule 17 of the Rules of Court, 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.
RULE 18: PRE-TRIAL
SECTION 1: WHEN CONDUCTED
After the last responsive pleading has been served and filed,
the branch clerk of court shall issue, within five (5) calendar
days from filing, a notice of pre-trial which shall be set not
later than sixty (60) calendar days from the filing of the last
responsive pleading (Rule 18, Sec. 1, RoC).
The difference from the Old Rule
Under the old rule, a pre-trial is set at the instance of the
plaintiff. However, this has been amended in the New Rules.
Under the New Rules, it is the clerk of court that is obliged
to set the case for pre-trial.
When should it be set?
The branch clerk of court shall issue a notice of pre-trial
within five (5) calendar days from the filing of the last
responsive pleading.
The pre-trial shall be set not later than sixty (60) calendar
days from the filing of the last responsive pleading.
Last responsive pleading
It shall be the last pleading filed by the parties permitted by
the Rules of Court.
It may be an answer or a reply (if the answer was based on
an actionable document) or a rejoinder (if the reply was
based on an actionable document).
SECTION 2: NATURE AND PURPOSE
Effect of plaintiff’s failure to appear after he presented
his evidence
The pre-trial is mandatory and should be terminated
promptly. The court shall consider:
When a plaintiff fails to appear during the presentation of the
defendant’s evidence after he has finished presenting his
evidence, it does not warrant the dismissal of the case. The
plaintiff merely waives his right to cross-examine the
witnesses.
1. The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
SECTION 4: DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM, OR THIRD-PARTY COMPLAINT
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2. The simplification of the issues;
3. The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
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CIVIL PROCEDURE REVIEWER
4. The limitation of the number and identification of
witnesses and the setting of trial dates;
The branch clerk of court shall prepare the minutes of the
pre-trial (Rule 18, Sec. 2, RoC).
5. The advisability of a preliminary reference of
issues to a commissioner
Mandatory nature of pre-trial; effects thereof
6. 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
As stated in Rule 18, Section 2, pre-trial is mandatory.
Failure of the plaintiff and his counsel to attend the pre-trial
would lead to the dismissal of the case. On the other hand,
failure of the defendant to appear during the pre-trial would
permit the plaintiff the ex parte presentation of evidence
(Rule 18, Section 5, RoC).
7. The requirement for the parties to:
a. Mark their respective evidence if not yet
marked in the judicial affidavits of their
witnesses;
b. Examine and make comparisons of the
adverse parties' evidence vis-a-vis the copies
to be marked;
c.
Manifest for the record stipulations regarding
the faithfulness of the reproductions and the
genuineness and due execution of the
adverse parties' evidence;
d. Reserve evidence not available at the pretrial, but only in the following manner:
i.
ii.
For testimonial evidence, by giving
the name or position and the nature
of the testimony of the proposed
witness;
For documentary evidence and other
object evidence, by giving a
particular
description
of
the
evidence.
Note: No reservation shall be allowed if not made
in the manner described above.
8. Such other matters as may aid in the prompt
disposition of the action.
The failure without just cause of a party and counsel to
appear during pre-trial, despite notice, shall result in a
waiver of any objections to the faithfulness of the
reproductions marked, or their genuineness and due
execution.
The failure without just cause of a party and/or counsel
to bring the evidence required shall be deemed a
waiver of the presentation of such evidence.
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In addition, the second paragraph states that failure of a
party to appear during pre-trial, without just cause, shall
result in a waiver of any objections to the faithfulness of the
reproductions marked, or their genuineness and due
execution.
Failure of the judge to conduct a pre-trial conference
The failure of a judge to conduct a pre-trial conference is
contrary to elementary rules of procedure. When the law or
procedure is elementary, failure to observe it would
constitute gross ignorance of the law and warrants a
corresponding penalty (Riano, 2016).
Failure to bring the evidence required
Paragraph 3 provides that the failure of a party to bring the
evidence required would constitute as a waiver of the
presentation of such evidence.
The difference from the Old Rule
The New Rules added that pre-trial should be terminated
promptly. It also adds more considerations [Rule 18,
Sections 2 (d), and (g) were added] that the court should also
recognize.
Motion to postpone pre-trial conference is not a matter of
right. At the outset, it should be emphasized that the trial
court has the discretion on whether to grant or deny a motion
to postpone and/or reschedule the pre-trial conference in
accordance with the circumstances obtaining in the case.
This must be so as it is the trial court that is able to witness
firsthand the events as they unfold during the trial of a case.
Postponements, while permissible, must not be
countenanced except for clearly meritorious grounds and in
light of the attendant circumstances (Parañaque Kings
Enterprises vs. Santos, G.R. No. 194638, July 02, 2014).
Q: Petitioners argue before the Supreme Court that the
motion for summary judgment filed before the pre-trial must
first be resolved before proceeding to pre-trial. Are the
petitioners’ correct?
A: The Supreme Court disagreed with their position ruling
that under Section 2(g) [now 2(f)] the non-resolution of the
motion filed before the pre-trial does not prevent the holding
of the pre-trial (Sps. Pascual vs. First Consolidated Rural
Bank, G.R. No. 202597, February 08, 2017).
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SECTION 3: NOTICE OF PRE-TRIAL
The notice of pre-trial shall include the dates
respectively set for:
However, this rule is subject to exceptions. As given in the
same rule, the non-appearance of a party and counsel
may be excused only in three instances (AFP):
1. Acts of God;
a. Pre-trial;
2. Force Majeure
b. Court-Annexed Mediation; and
3. Duly Substantiated Physical Inability
c.
Judicial Dispute Resolution, if necessary.
Representatives, when allowed
The notice of pre-trial shall be served on counsel, or on
the party if he or she has no counsel. The counsel served
with such notice is charged with the duty of notifying the
party represented by him or her.
Non-appearance at any of the foregoing settings shall be
deemed as non-appearance at the pre-trial and shall merit
the same sanctions under Section 5 hereof (Rule 18, Sec.
3, RoC).
Notice of Pre-Trial; To whom served
The notice shall be served on the counsel of the party who
has the duty to notify his or her client of the notice.
However, if the party has no counsel, the notice shall be
served to him or her.
The difference from the Old Rule
The New Rules now require that the notice shall include
the dates for the pre-trial, court-annexed mediation, and
judicial dispute resolution (if necessary).
Under Paragraph 3 of the Section, failure to appear at any
of the above-mentioned settings would render the effects
mentioned in Section 5 of the same rule applicable.
SECTION 4: APPEARANCE OF PARTIES
It shall be the duty of the parties and their counsel to appear
at the pre-trial, court-annexed mediation, and judicial dispute
resolution, if necessary. The non- appearance of a party and
counsel may be excused only for acts of God, force majeure,
or duly substantiated physical inability.
A representative may appear on behalf of a party, but must
be fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of
facts and documents (Rule 18, Sec. 4, RoC).
The appearance of Parties is mandatory; Exceptions
This section emphasizes the general rule that mandatory
appearance of the counsel and the parties during the pretrial, court-annexed mediation, and judicial dispute
resolution (if necessary).
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A representative may appear on behalf of a party as long as
such representative is authorized in writing to submit to
alternative dispute resolution and to enter into stipulations or
admissions of facts and documents.
In this case, the petitioner’s counsel admitted that he failed
to notify his clients of the scheduled pre-trial because he
failed to note it in his calendar and eventually forgot about it
because of his “heavy workload.” According to the Supreme
Court, such excuse hardly constitutes exigencies or
situations which would warrant flexibility of the rules. As
such, the exceptions are given in Rule 18; Section 4 may not
be considered (Sps. Corpuz vs. Citibank, G.R. No. 175677
& G.R. No. 177133, July 31, 2009).
SECTION 5: EFFECT OF FAILURE TO APPEAR
When duly notified, the failure of the plaintiff and counsel to
appear without valid cause when so required, pursuant to the
next preceding Section, shall cause the dismissal of the
action. The dismissal shall be with prejudice unless
otherwise ordered by the court. A similar failure on the part
of the defendant and counsel shall be cause to allow the
plaintiff to present his or her evidence ex-parte within ten (10)
calendar days from termination of the pre-trial, and the court
to render judgment on the basis of the evidence offered
(Rule 18, Sec. 5, RoC).
Effect of Failure to Appear by the Plaintiff and
Counsel; Remedy of the Plaintiff
The failure of the plaintiff and his or her counsel to appear,
without valid cause, will cause the dismissal of the action.
The dismissal may be upon motion of the defendant or
upon motion of the court (Rule 17, Sec. 3, RoC).
Such dismissal shall be with prejudice unless
otherwise stated by the court. Since, as a general rule,
the dismissal due to failure to appear is with prejudice, it
shall operate as an adjudication to the merits; thus, it is
final. The remedy of the party, therefore, is to appeal the
order of dismissal within the period provided for by the
rules. Such rule shall only apply if it was dismissed with
prejudice.
However, such dismissal shall not bar the defendant from
presenting his or her evidence to prove his counter-claim
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in the same action or from instituting a separate action
against the plaintiff (Rule 17, Sec. 3, RoC).
Effect of Failure to Appear by the Defendant and
Counsel; Remedy of the Defendant
The failure of the defendant and his or her counsel to appear
during the pre-trial shall permit the plaintiff to present
evidence ex parte, and the court shall render a judgment
based on the pieces of evidence offered by the plaintiff.
The defendant need not file a motion to declare the
defendant in default. It must be noted that the default
discussed in this section is different from the one discussed
in Rule 9.
The remedy of the defendant is to file a motion for
reconsideration, and if the denial is with grave abuse of
discretion, he or she may file a petition for certiorari under
Rule 65.
Default under Rule 9 vs. Default under Rule 18
RULE 9
RULE 18
MOTION TO DECLARE DEFENDANT IN DEFAULT
The plaintiff must move to
declare the defendant in
default and must present
It is not required.
proof that defendant failed
to file an answer within the
reglementary period.
EX PARTE PRESENTATION OF EVIDENCE
Only if ordered by the
judge. Otherwise, the
judge
shall
render
It is required.
judgment based on the
reliefs prayed for in the
pleading.
REMEDY
Motion
for
reconsideration. If tainted
Motion to set aside the
with grave abuse of
order of default.
discretion, petition for
certiorari.
Rule 17, Section 3, and Rule 18, Section 5, must be read in
conjunction. Rule 17, Section 3, contemplates a dismissal
due to the fault of the plaintiff. In this case, the dismissal was
due to the failure to appear at the pre-trial. This situation is
also covered by Section 3, as extended by judicial
interpretation, and is ordered, upon motion of the defendant
or motu proprio by the court (Sps. Corpuz vs. Citibank,
G.R. No. 175677 & G.R. No. 177133, July 31, 2009).
Tiu sued Booklight for unpaid rentals. Booklight was declared
to be “non-suited” under the Rules of Court for its failure to
attend the pre-trial conference and for its failure to file a pretrial brief by the trial court. The Court ruled that the trial court
erred in declaring Booklight “non-suited” under the Rules of
Court. The failure of a party to appear at the pre-trial has
adverse consequences. Section 5, Rule 18 of the Rules of
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Court provides that if the absent party is the plaintiff, then he
may be declared non-suited and his case dismissed; if it is
the defendant who fails to appear, then the plaintiff may be
allowed to present his evidence ex parte and the court to
render judgment on the basis thereof (Booklight vs. Tiu,
G.R. No. 213650, June 17, 2019).
On the procedural aspect, the Court reiterates the rule that
the failure to attend the pre-trial conference does not result
in the default of an absent party. Under the 1997 Rules of
Civil Procedure, a defendant is only declared in default if he
fails to file his Answer within the reglementary period. On the
other hand, if a defendant fails to attend the pre-trial
conference, the plaintiff can present his evidence ex parte.
Sections 4 and 5, Rule 18 of the Rules of Court provides this
(Sps. Salvador vs. Sps. Rabaja, G.R. No. 199990,
February 04, 2015).
SECTION 6: PRE-TRIAL BRIEF
The Rules require the parties to file a pre-trial brief at least
three (3) calendar days before the date of the pre-trial.
The pre-trial brief must be served on the adverse party, also
at least three (3) calendar days before the date of the pretrial.
The pre-trial brief must contain the following:
a.
A concise statement of the case and the reliefs
prayed for;
b.
A summary of admitted facts and proposed
stipulation of facts;
c.
The main factual and legal issues to be tried or
resolved;
d.
The propriety of referral of factual issues to
commissioners;
e.
The documents or other object evidence to be
marked, stating the purpose thereof;
f.
The names of the witnesses, and the summary of
their respective testimonies; and
g.
A brief statement of points of law and citation of
authorities (Rule 18, Sec. 6, RoC).
Failure to file a pre-trial brief; Remedy
Failure to file a pre-trial brief shall have the same effect
as failure to appear at the pre-trial.
Filing a pre-trial brief is mandatory and failure to file a pretrial brief will result to the application of Section 5 of Rule
18. As such, the failure on the part of the plaintiff would
be declared non-suited and cause the dismissal of the
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CIVIL PROCEDURE REVIEWER
action, while the failure of the defendant would permit the
plaintiff to present his or her evidence ex parte.
A party who failed to file a pre-trial brief may file a motion
for reconsideration, showing that his failure to file was due
to fraud, accident, mistake, or excusable negligence.
The fact that petitioner did not have a counsel is not a
reason for failure to file a pre-trial brief (Saguid vs. Court
of Appeals, G.R. No. 150611, June 10, 2003).
SECTION 7: PRE-TRIAL ORDER
Upon termination of the pre-trial, the court shall issue an
order within ten (10) calendar days which shall recite in
detail the matters taken up.
The order shall include:
agreed upon. Should the opposing party fail to appear
without valid cause stated in the next preceding paragraph,
the presentation of the scheduled witness will proceed with
the absent party being deemed to have waived the right to
interpose objection and conduct cross-examination.
The contents of the pre-trial order shall control the
subsequent proceedings, unless modified before trial to
prevent manifest injustice (Rule 18, Sec. 7, RoC).
Pre-Trial Order
This is an order issued by the court upon termination of the
pre-trial. It shall be issued within ten (10) calendar days from
the termination of the pre-trial.
The pre-trial order defines and limits the issues to be tried
and its contents shall control the subsequent course of action
of the parties.
a. An enumeration of the admitted facts;
Issues in the Pre-Trial Order
b. The minutes of the pre-trial conference;
As a rule, issues included in the pre-trial order were defined
and limited only to the issues to be tried during the trial
proper. However, this does not mean that those are the only
issues that may be discussed during trial. It also includes
those that are implied from the ones written in the order.
c. The legal and factual issue/s to be tried;
d. The applicable law, rules, and jurisprudence;
e. The evidence marked;
f.
The specific trial dates for continuous trial, which
shall be within the period provided by the
Rules;(g) The case flowchart to be determined by
the court, which shall contain the different stages
of the proceedings up to the promulgation of the
decision and the use of time frames for each
stage in setting the trial dates;
g. A statement that the one-day examination of
witness rule and most important witness rule
under A.M. No. 03-1-09-SC (Guidelines for PreTrial) shall be strictly followed; and
h. A statement that the court shall render judgment
on the pleadings or summary judgment, as the
case may be. The direct testimony of witnesses
for the plaintiff shall be in the form of judicial
affidavits. After the identification of such
affidavits, cross-examination shall proceed
immediately.
Postponement of presentation of the parties’ witnesses at a
scheduled date is prohibited, except if it is based on acts of
God, force majeure or duly substantiated physical inability of
the witness to appear and testify. The party who caused the
postponement is warned that the presentation of its evidence
must still be terminated within the remaining dates previously
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It was, thus, held that a pre-trial order is not intended to be a
detailed catalogue of each and every issue that is to be taken
during the trial, for it is unavoidable that there are issues that
are impliedly included among those listed or that may be
inferable from those listed by necessary implication which
are as much integral parts of the pre-trial order as those
expressly listed (Riano, 2016).
Q: Petitioner filed a complaint for the nullification of the sale
between his father and respondents claiming that the
signature of his father was forged. It was admitted that during
the pre-trial conference that the signatures were forged and
as such, petitioner moved for the execution of the partial
judgment. The Court of Appeals reversed the decision of the
trial court for the execution of the partial decision ruling that
extrinsic fraud was attendant in this case because although
respondent Juani was represented by his counsel in trial, the
latter did not understand the admissions he made during the
pre-trial proceedings. Can Juani claim that he was denied his
day in court?
A: No. The Supreme Court held that respondent Juani
cannot claim that he was denied his day in court since the
basis of the partial decision was the admissions made by his
counsel. From the foregoing, the admissions were clearly
made during the pre-trial conference and, therefore,
conclusive upon the parties making it. Since the facts were
already admitted, there was no more reason to go to trial
which means that the trial court was correct in executing the
partial decision (Alarcon vs. Court of Appeals, G.R. No.
152085, July 8, 2003).
Q: Petitioners filed a Motion for Reconsideration
concerning their right to repurchase however, such issue
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CIVIL PROCEDURE REVIEWER
was not covered by the pre-trial order. Will the issue be
limited only to the validity of the deed of sale?
A: No. While it is true that pre-trial is primarily intended to
make certain that all issues necessary to the disposition
of a case are properly raised. Parties are expected to
disclose at a pre-trial conference all issues of law and fact
which they intend to raise at the trial. The determination
of issues at a pre-trial conference bars the consideration
of other questions on appeal. However, as previously
intimated, the rules are not applied with rigidity
especially when it will result to injustice. In this case,
the failure of the private respondents to object when the
petitioners were presenting evidence to prove the right to
repurchase and their participation by cross-examining
petitioners’ witnesses constitutes an implied assent on the
part of the private respondents to depart from the issue
contained in the pre-trial order (Son vs. Son, G.R. No.
73077, December 29, 1995).
The Judicial Affidavit Rule and the Guidelines on Pre-Trial
do not totally proscribe the submission of additional
evidence even after trial had already commenced. As long
as there are valid grounds to allow the submission of
additional evidence (Lara’s Gift and Decors, Inc. vs.
PNB General Insurers, G.R. Nos. 230429-30, January
24, 2018).
SECTION 8: COURT-ANNEXED MEDIATION
After pre-trial and, after issues are joined, the court shall
refer the parties for mandatory court-annexed mediation.
The period for court-annexed mediation shall not exceed
thirty (30) calendar days without further extension (Rule
18, Sec. 8, RoC).
Judicial Dispute Resolution
It is a process whereby the judge employs conciliation,
mediation, or early neutral evaluation in order to settle a case
at the pre-trial stage. In the event this fails, then another
judge shall proceed to hear and decide the case.
This is not anymore mandatory and may only be resorted to
if the judge is convinced that a settlement may still be
reached.
SECTION 10: JUDGMENT AFTER PRE-TRIAL
Should there be no more controverted facts, or no more
genuine issue as to any material fact, or an absence of any
issue, or should the answer fail to tender an issue, the court
shall, without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule
35, motu proprio include in the pre-trial order that the case
be submitted for summary judgment or judgment on the
pleadings, without need of position papers or memoranda. In
such cases, judgment shall be rendered within ninety (90)
calendar days from termination of the pre- trial.
The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or
certiorari (Rule 18, Sec. 10, RoC).
Judgment After Pre-Trial
The Court, on its own, may move to render a judgment on
the pleadings (if the answer fails to tender an issue or admits
the material allegations of the adverse party’s pleadings) or
to execute a summary judgment (when there is no genuine
issue as to any material fact).
The order of the court to submit the case for judgment under
this Rule cannot be the subject of an appeal or certiorari.
Court-Annexed Mediation (CAM)
It is a voluntary process conducted under the auspices of
the court by referring the parties to the Philippine
Mediation Center (PMC) Unit for the settlement of their
dispute, assisted by a Mediator accredited by the
Supreme Court.
SECTION 9: JUDICIAL DISPUTE RESOLUTION
Only if the judge of the court to which the case was originally
raffled is convinced that settlement is still possible, the case
may be referred to another court for judicial dispute
resolution. The judicial dispute resolution shall be conducted
within a non-extendible period of fifteen (15) calendar days
from notice of failure of the court-annexed mediation.
If judicial dispute resolution fails, trial before the original court
shall proceed on the dates agreed upon.
All proceedings during the court-annexed mediation and
the judicial dispute resolution shall be confidential (Rule
18, Sec. 9, RoC).
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RULE 19: INTERVENTION
SECTION 1: WHO MAY INTERVENE
Intervention
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 proceedings.
In an intervention, the third party either joins the plaintiff
or unite with the defendant or demand something adverse
to both of them (Mactan-Cebu International Airport
Authority vs. Heirs of Miñoza, G.R. No. 186045, February
2, 2011).
Ancillary Nature
An intervention is never an independent proceeding, but
ancillary and supplemental to an existing litigation and in
subordination to the main proceeding.
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Pre-Trial Flow Chart
Pre-Trial Brief
(PTB)
Failure to file the
PTB
By plaintiff =
dismissed without
prejudice unless
otherwise stated
Filed the PTB
By defendant = ex
parte presentation
of evidence by
plaintiff
Pre-Trial
Conference
Failed to Appear
By plaintiff =
dismissed without
prejudice unless
otherwise stated
By defendant = ex
parte presentation
of evidence by
plaintiff
No settlement
Settlement
Pre-Trial
Conference
Court Annexed
Mediation
Judicial Dispute
Resolution, if
needed
Trial
Court renders a
decision
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An intervention is merely an interlocutory proceeding
dependent or subsidiary to the main action. If the main
action ceased to exist, there is no pending proceeding
wherein the intervention may be based. A judgment
approving a compromise agreement is final and
immediately executory. Continuance of an intervention in
this case would serve no purpose at all (Ordoñez vs.
Gustillo, G.R. No. 81835, December 20, 1990).
An intervention cannot alter the nature of the action and
the issues already joined (Bar 2011).
Jurisdiction over an intervention is governed by the
jurisdiction over the main action. An intervention
presupposes the pendency of a suit in a court of
competent jurisdiction (Pulgar vs. RTC of Mauban,
Quezon Br. 64, G.R. No. 157583, September 10, 2014).
Not a Matter of Right
Intervention is not a matter of right but may be permitted
when the applicant shows facts which satisfy the
requirements if the statute authorizing intervention.
Subject to Court’s Discretion
GR: The allowance or disallowance of a motion for
intervention rests on the sound discretion of the court after
consideration of the appropriate circumstances.
XPNs:
1. Intervenor turns out to be an indispensable party;
and
2. In a class suit where any party in interest of the
class has the right to intervene (Rule 3, Sec. 12,
RoC).
Considerations to be taken
The court in allowing or disallowing an intervention should
take into consideration whether or not:
1.
Intervention will unduly delay or prejudice the
adjudication of the rights of the original parties,
and
2. Intervenor’s right or interest can be adequately
pursued and protected in a separate proceedings
(Rule 19, Sec. 1, RoC),
b.
c.
d.
Legal interest in the success of either of the
parties in the action;
Legal interest against both parties;
Movant 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 (Rule 19, Sec. 1, RoC).
Legal Interest
Actual, material, direct, and of an immediate character
(Mactan-Cebu International Airport Authority vs. Heirs of
Miñoza, G.R. No. 186045, February 2, 2011).
It must not be merely contingent or expectant, so that the
intervenor will either gain or lose by the direct legal operation
of the judgment.
If persons whose interest are not actual, material, direct, and
of an immediate character, proceedings would become
unnecessarily complicated, expensive, and interminable
(Mactan-Cebu International Airport Authority vs. Heirs of
Miñoza, G.R. No. 186045, February 2, 2011).
A corporate stockholder cannot, merely on the basis of being
a stockholder, have a legal right to intervene in cases
involving corporate assets. A shareholder is not an owner of
a corporate property, which is owned by the corporation as
an entity with a separate and distinct personality of its own
(Magsaysay-Labrador vs. CA, G.R. No. 58168, December
19, 1989).
While a share of a stock represents a proportionate interest
of a shareholder in the property of a corporation, it does not
vest upon him any legal right or title to any of the property of
the corporation. The interest of the stockholders is merely
indirect, contingent, remote, conjectural, consequential, and
collateral. Their interest is purely inchoate, or in a sheer
expectancy of a right in the management of the corporation
and to share in the profits and in the properties and asset in
dissolution, after payment of the corporate debts and
obligations (Magsaysay-Labrador v. CA, G.R. No. 58168,
December 19, 1989).
Remedy for the denial of an intervention
The order of the court in denying the motion for intervention
is not a decision on the merits of the case and does not
constitute res judicata.
The remedy is to appeal. The proposed intervenor cannot
appeal from the decision, but only from the order denying the
intervention (Herrera, 2007).
Requisites for intervention
Complaint-in-Intervention vs. Third-party Complaint
1. There must be a motion for leave to intervene
filed before rendition of judgment by the trial
court;
2. Movant must show in his motion that he has a:
a. Legal interest in the matter in litigation; or
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COMPLAINT-INTHIRD PARTY
INTERVENTION
COMPLAINT
BY WHOM FILED
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CIVIL PROCEDURE REVIEWER
Original party to
Stranger to the action to the case to join
be made a party therein. the third person in
the action
PURPOSE
Contribution,
May intervene for his Indemnification,
sole benefit and for his Subrogation,
or
own interest.
Other reliefs (Rule
6, Sec. 11, RoC).
Intervention can no longer be allowed in a case already
terminated by final judgment (Yu vs. Miranda, G.R. 225752,
March 27, 2019).
SECTION 3: PLEADINGS-IN-INTERVENTION
Complaint-in-Intervention vs. Answer-in-Intervention
COMPLAINT-INANSWER-ININTERVENTION
INTERVENTION
NATURE
Intervenor
plaintiff.
unites
with
Intervenor
defendant.
unites
with
SECTION 2: TIME TO INTERVENE
GR: The motion to intervene may be filed at any time
before rendition of judgment by the trial court.
A copy of the pleading-in-intervention shall be attached to
the motion and served on the original parties.
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 (Metropolitan Bank and Trust Company vs.
Raycor Aircontrol System, G.R. 89909, September 21,
1990).
XPNs:
Assert claim against
either or all of the original
parties.
Resist claim against either
or all of the original
parties.
The allowance or disallowance of a motion for intervention
rests on the sound discretion of the court after consideration
of the appropriate circumstances. It is not an absolute right.
The statutory rules or conditions for the right of intervention
must be shown. The procedure to secure the right to
intervene is to a great extent fixed by the statute or rule, and
intervention can, as a rule, be secured only in accordance
with the terms of the applicable provision (MCIAA vs. Heirs
of Estanislao Minoza, G.R. 186045, February 2, 2011).
Complaint-in-Intervention Against Both
If the intervenor does not ally himself with either party.
1. With
respect
to
indispensable
parties,
intervention may be allowed even on appeal;
2. In order to avoid injustice; or
3. Protect interest which cannot otherwise be
protected.
Exceptions on Right to Intervene Despite Timely
application
1.
2.
3.
4.
PURPOSE
Lack of legal interest on the matter;
Unduly delays the principal suit;
Enlarges the issues; or
Expands the scope of remedies
Dismissal of Original Complaint
In other words, the cessation of the principal litigation –
on jurisdictional grounds at that – means that Pulgar had,
as a matter of course, lost his right to intervene. Where
the right of the latter has ceased to exist, there is nothing
to aid or fight for; hence, the right of intervention ceases
(Pulgar vs. RTC, G.R 157583, September 10, 2014).
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It is an initiatory pleading, subject to Payment of Docket Fees
and Certification against Forum-Shopping.
Prohibitions on Interventions in Summary Procedure
and Small Claims Cases
Under the Revised Rules on Summary Procedure and
Revised Rules on Small Claims, interventions are NOT
allowed in such proceedings.
SECTION 4: ANSWER TO
COMPLAINT-IN-INTERVENTION
The answer to the complaint-in-intervention shall be filed
within fifteen (15) calendar days from notice of the
order admitting the same, unless a different period is fixed
by the court.
Failure to interpose a timely objection when the motion for
leave to intervene was filed bars belatedly questioning the
validity of the same on appeal (Metropolitan Bank and
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CIVIL PROCEDURE REVIEWER
Trust Company vs. Raycor Aircontrol System, G.R.
89909, September 21, 1990).
Procedure for Intervention
1. The motion and pleading shall be served upon
the original parties;
2. The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention.
The pleading to be filed depends upon the
purpose of the intervention; and
3. Answer to complaint-in-intervention shall be filed
within fifteen (15) calendar days from notice of the
order admitting the same, unless a different
period is fixed by the courts.
RULE 20: CALENDAR OF CASES
SECTION 1: CALENDAR OF CASES
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,
RoC).
Subpoena vs. Summons
SUBPOENA
SUMMONS
An order to appear and to
testify at the hearing or for
taking deposition.
May be served to a nonparty.
Needs tender of kilometrage,
attendance
fee,
and
reasonable
cost
of
production fee.
Writ notifying of action
brought
against
defendant.
Served
on
the
defendant.
Two Kinds of Subpoena
1.
Subpoena duces tecum – It is a process directed
to a person requiring him to bring with him any
books, documents, or other things under his control
(Rule 21, Sec. 1, RoC).
2.
Subpoena ad testificandum – It is a process
directed to a person requiring him to attend and to
testify at the hearing or trial of an action or at any
investigation conducted by competent authority or
for the taking of his deposition (Rule 21, Sec. 1,
RoC).
The Clerk of Court shall keep a calendar of cases for:
1. Pre-Trial;
2. Trial;
3. Those whose trials were adjourned or postponed;
and
4. Those with motions set for hearing (Rule 20, Sec.
1, RoC).
Preference is given to the following cases (HEST):
1.
2.
3.
4.
Habeas Corpus cases;
Election cases;
Special Civil Actions; and
Those so required by law (Rule 20, Sec. 1, RoC).
SECTION 2: ASSIGNMENT OF CASES
The assignment of cases to the different branches of
the court shall be done:
1.
2.
3.
Exclusively by raffle;
In open session; and
With adequate notice given to interested parties
(Rule 20, Sec. 2, RoC).
RULE 21: SUBPOENA
SECTION 1: SUBPOENA AND
SUBPOENA DUCES TECUM
Subpoena is a Latin term which literally means “under the
pain of penalty.”
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Does not need tender
of kilometrage and
other fees.
When requesting party may avail himself of the
issuance of a subpoena ad testificandum or duces
tecum
If the government employee or official, or the requested
witness, who is neither the (a) witness of the adverse party
nor a (b) hostile witness:
1.
2.
Unjustifiably declines to execute a judicial affidavit;
or
Refuses without just cause to make the relevant
books, documents, or other things under his control
available for copying, authentication and eventual
production in court.
Note: The rules governing the issuance of a subpoena to the
witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall
be understood to be ex parte (Sec. 5, A.M. No. 12-8-8-SC).
SECTION 2: BY WHOM ISSUED
The following may issue a subpoena:
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1. The court before whom the witness is required to
attend;
2. The court of the place where the deposition is to
be taken;
3. The officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
4. Any Justice of the SC or of the CA in any case or
investigation pending within the Philippines (Rule
21, Sec. 2, RoC).
Subpoena to a prisoner
Q: A case for unfair competition with damages was filed
against petitioner Universal Rubber Products. The judge,
acting favorably on the request of respondents, issued a
subpoena duces tecum directing the treasurer of Universal
to bring with him to the lower court “all sales invoices, sales
books and ledgers.” Petitioner filed a motion praying that the
subpoena be quashed on the ground that it is both
unreasonable and oppressive as the books and documents
are numerous and voluminous, there is no good cause
shown for the issuance, and that the documents and books
are not relevant to the case pending. Is the subpoena duces
tecum proper?
Remedy: If not authorised because of risk of flight, the
hearing could be conducted in the penal institution where the
prisoner is located.
A: Yes. In order to entitle a party to the issuance of a
"subpoena duces tecum," it must appear by clear and
unequivocal proof, that the book or document sought to be
produced contains evidence relevant and material to the
issue before the court, and that the precise book, paper or
document containing such evidence has been so designated
or described that it may be identified. In a suit for unfair
competition, it is only through the issuance of the questioned
"subpoena duces tecum" that the complaining party is
afforded his full rights of redress. To determine the amount
of damages allowable after the final determination of the
unfair labor case would not only render nugatory the rights of
complainant under Sec. 23 of R.A. 166, but would be a
repetitious process causing only unnecessary delay
(Universal Rubber Products, Inc. v. Hon. Court of
Appeals, G.R. No. L-30266, June 29, 1984).
SECTION 3: FORM AND CONTENTS
SECTION 4: QUASHING A SUBPOENA
The judge or officer shall examine and study carefully such
application to determine whether the same is made for a
valid purpose.
GR: No prisoner sentenced to death, reclusion perpetua or
life imprisonment and is confined in prison shall be brought
outside the said penal institution for appearance or
attendance in any court.
XPN: When authorized by the Supreme Court (Rule 21, Sec.
2, RoC).
Contents of subpoena (NaDiDe)
1. Name of the court and the title of the action or
investigation,
2. Shall be directed to the person whose attendance
is required, and
3. In the case of a subpoena duces tecum, it shall
also contain a reasonable description of the
books, documents or things demanded which
must appear to the court prima facie relevant.
(Rule 21, Sec. 3, RoC).
Grounds for Quashal of Subpoena duces tecum
Upon motion promptly made, in any event, or before the time
specified therein:
1.
2.
3.
4.
Requisites for issuance of Subpoena Duces Tecum
1.
2.
Test of Relevancy – The books, documents or
other requests must appear to be prima facie
relevant;
Test of Definiteness – Such books must be
reasonably described to be readily identified.
NOTE: A general inquisitorial examination of all the books,
papers, and documents of an adversary, conducted with a
view to ascertain whether something of value may not shop
up will not be enforced (Roco v. Contreras, G.R. No.
158275, June 28, 2005).
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If it is unreasonable and oppressive;
The relevancy of the books, documents or things
does not appear;
If the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the
production thereof (Rule 21, Sec. 4, RoC); or
That the witness fees and kilometrage allowed by
the Rules were not tendered when the subpoena
was served.
NOTE: The grounds are not exclusive.
Grounds for Quashal of Subpoena ad testificandum
1.
2.
3.
The witness is not bound thereby;
The witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
served (Rule 21, Sec. 4, RoC); or
The witness invokes his viatory right (Rule 21, Sec.
10, RoC).
NOTE: The grounds are not exclusive.
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CIVIL PROCEDURE REVIEWER
Illustrative Case
If the court is in Batangas, and the witness lives in Cebu,
which is more than 100 kms away. Even if the court issues
a subpoena, the witness, who lives 100kms away from the
court in which he is supposed to testify is not bound to
follow the subpoena. He cannot be cited in contempt for
failing to appear.
The remedy is deposition. The party requesting the
witness will be the one who will go to the place of the
supposed witness. The party may either file a deposition
or written interrogatories.
NOTE: This viatory right is applicable only in civil cases
(People of the Philippines v. Hon. Gregorio Montejo,
G.R. No. L-24154, October 31, 1967).
Q: A criminal case was filed in the CFI of Zamboanga City
against Felix Wee Sit for double homicide and serious
physical injuries thru reckless imprudence. During trial, it
was stated that a certain Ernesto, a permanent resident
of Montalban Rizal is a material and important witness in
the case, as he happened to be an eye-witness during the
traffic incident wherein a private jeep was driven
recklessly by Felix Wee in the public highway of
Zamboanga City. Subpoena was served on Ernesto but
he did not appear. The City Fiscal formally moved for an
order of arrest or in the alternative to cite him for contempt
for willful failure to appear at the trial, which the
respondent Judge denied. Whether the judge’s denial is
proper?
A: No. Under the circumstances, in view of the serious
handicap to which the prosecution would thus be
subjected in proving its case, the order of respondent
judge denying the motion for an order of arrest or a
citation for contempt in the alternative, based on a clear
misapprehension of the Rules of Court, could be viewed
as amounting to grave abuse of discretion. It would follow
then that respondent Judge should decide said motion
without taking into consideration Section 9 of Rule 23.
It is loath to clip what undoubtedly is the inherent power of
the Court to compel the attendance of persons to testify in a
case pending therein. Section 9 of Rule 23 is thus interpreted
to apply solely to civil cases. A recognition of such power in
a court of first instance conducting the trial of an accused
may be gleaned from principle that justifies it when satisfied
"by proof or oath, that there is reason to believe that a
material witness for the prosecution will not appear and
testify when required," to order that he "give bail in sum as it
may deem proper for such appearance. Upon refusal to give
bail, the court must commit him to prison until he complies or
is legally discharged (People of the Philippines v. Hon.
Gregorio Montejo, G.R. No. L-24154, October 31, 1967).
SECTION 5: SUBPOENA FOR DEPOSITIONS
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Proof of service of notice to take a deposition, as provided in
Sections 15 and 25, Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the persons
named in said notice by the clerk of the court of the place in
which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person
without an order of the court (Rule 21, Sec. 5, RoC).
An express order of the court is necessary for the issuance
by the clerk of court of a subpoena duces tecum to a witness
for the taking of his deposition, because the officer before
whom the deposition is taken has no authority to Rule on
objections, including a motion to quash.
However, such is not necessary for the issuance of a
subpoena duces tecum to a witness for the hearing or trial
before the court (Feria, 2013).
SECTION 6: SERVICE
1.
2.
3.
It 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; and
Tendering to him the fees for one day’s attendance and
the kilometrage allowed by the Rules (Rule 21, Sec. 6,
RoC).
XPN: 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.
NOTE: If the subpoena is duces tecum, the reasonable cost
of producing the books, documents or things demanded shall
also be tendered.
Rationale for service of summons
The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of
attendance.
SECTION 7: PERSONAL APPEARANCE IN COURT
A person present in court before a judicial officer may be
required to testify as if he or she were in attendance upon a
subpoena issued by such court or officer (Rule 21, Sec. 7,
RoC).
SECTION 8: COMPELLING ATTENDANCE
Upon Failure of Witness to Attend
If the court determines that the witness’ disobedience was
willful and without just excuse, the court or judge which
issued the subpoena may:
1. Issue a warrant to the sheriff of the province or to
the deputy to arrest the witness and bring him
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CIVIL PROCEDURE REVIEWER
before the court or officer where his attendance is
required; and
2. Make him pay the cost of such warrant and
seizure (Rule 21, Sec. 8, RoC).
SECTION 9: CONTEMPT
The refusal to obey a subpoena without adequate cause
shall be deemed contempt of the court issuing it. If the
subpoena was not issued by a court, the disobedience
thereto will be punished in accordance with the applicable
law or Rule (Rule 21, Sec. 9, RoC).
SECTION 10: EXCEPTIONS
The provisions of sections 8 and 9 of this Rule shall not
apply to a:
1. Viatory Rights of a Witness – 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;
In computing, any period of time prescribed or allowed by
these Rules, or by order of the court or by any applicable
statue, the day of the act or the event from which the
designated period of time begins to run is to be excluded
and the date of the performance included.
If the last day falls on a Saturday, or a Sunday, or a legal
holiday, in the place where the court sits, the time shall not
run until the next working day (Rule 22, Sec. 1, RoC).
Non-working days (Saturdays, Sundays, and legal holidays)
are excluded from the counting of the period only when the
last day of the period falls on such days. Rule 22 does not
provide for any other circumstance in which non-working
days would affect the counting of a prescribed period (Sps.
Leynes vs. CA, G.R. No. 154462, January 19, 2011).
Applicability of Article 13 of the Civil Code
When the law speaks of years, months, days or nights, it
shall be understood that:
1.
2.
3.
4.
2. Detention prisoner if no permission of the court in
which his case is pending was obtained (Rule 21,
Sec. 10, RoC).
Q: A warrant of arrest was issued against complainant Dr.
Gil, the former health officer of Claveria, Masbate for his
failure to appear as government medico-legal witness in
a pending murder case before Judge Quintain. Dr. Gil’s
excuse for his non-appearance was of the fact that he was
not reimbursed for all his travel expenses. But he was still
arrested and confined in the headquarters of the
Philippine Constabulary. Is Dr. Gil required to appear in
court?
A: Yes. While sympathizing with the complainant for the
latter's experiences of having spent his own funds for trips
made as a witness in criminal cases, there was no way out
of the predicament except to obey the subpoena. As to the
allegation that the judge’s conduct in chambers when
complainant was explaining his inability to appear was
unbecoming a judge, the judge has no reason to be
discourteous, as he was not in fact so, to the complainant.
And after considering the complainant's explanation, the
respondent judge issued an order in chambers accepting the
explanation as satisfactory and ordering at the same time the
immediate release of the complainant. The issuance of the
said order is inconsistent with the claim of complainant that
his explanation made in chambers was ignored by the
respondent judge (Genorga vs. Quitain, A.M. No. 981-CFI,
July 29, 1977).
RULE 22: COMPUTATION OF TIME
SECTION 1: HOW TO COMPUTE TIME
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Years – three hundred sixty-five days;
Days – twenty-four hours; and
Nights – from sunset to sunrise
Months – if designated by names, they shall be
computed by the number of days which they
respectively have.
In computing a period, the first day shall be excluded and the
last day included.
This rule applies only when the period of time is prescribed
by the Rules, by order of the court or by any applicable statue
(Art. 13, NCC).
Exceptions (CSP):
1.
2.
3.
To those provided in the Contract (Art. 1159, NCC);
A Specific date set for a court hearing or foreclosure sale
(Rural Bank vs. CA, G.R. No. L-32116, April 21, 1981);
or
Prescriptive (not reglementary) periods specifically
provided by the Revised Penal Code for felonies therein
(Yapdiangco vs. Buencamino, G.R. No. L-28841,
June 24, 1983).
How 15-day extension should be reckoned
It should be tacked on the original period and commence
immediately after the expiration of such period.
Petitioner still had until December 28, 1998, a Monday and
the next business day to move for a 15-day extension
considering that December 26, 1998, the last day for
petitioner to file her petition for review fell on a Saturday. The
motion for extension filed on December 28, 1998 was thus
filed on time since it was filed before the expiration of the
time sought to be extended (Labad vs. The University of
Southwestern PHL, G.R. No. 139665, August 9, 2001).
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CIVIL PROCEDURE REVIEWER
Any extension of time to file the required pleading should
be counted from the expiration of the period regardless of
the fact that the said due date is a Saturday, Sunday, or
legal holiday (A.M. No. 00-2-14-SC; Luz vs. National
Amnesty Commission, G.R. No. 159708, September
24, 2004).
For purposes of asking for an extension of time the rule is
different. If the deadline is a Saturday, and a party sought
an extension and the same is granted, the due date
ceases to be the last day, and hence, the provision no
longer applies. Any extension therefore to file the required
pleading should therefore be counted or reckoned from
the expiration of the period regardless of the fact that said
due date is a Saturday, Sunday or legal holiday (Reinier
Pacific International Shipping, INC. and Neptune Ship
Management Svcs., PTE., vs. Captain Guevarra, G.R.
No. 157020, June 19, 2013).
Illustrative Case
During holy week, there are no work on Thursday, Friday,
Saturday, and Sunday. If the deadline falls on a Holy
Thursday, the deadline is on Monday, the first working
day.
Continuing from the case above, if petitioner asked for an
extension of 10-day period to file an Answer and the same
was granted, it should be reckoned from Holy Thursday,
the original deadline, and not on Monday, the day
petitioner is supposed to submit an Answer.
Pretermission of Holidays in Civil and Criminal Cases
In construing statute of limitations, the first day is excluded
and the last day is included, unless last day is dies non (a
day on which no courts can be held), in which case the act
may be done on the succeeding business days.
In criminal cases, such a situation cannot lengthen the period
fixed by law to prosecute such offender. The waiver or loss
of right to prosecute is automatic and by operation of law.
Where the last day to file an information falls on a Sunday or
legal holiday, the period cannot be extended up to the next
working day since the prescription has already set in
(Regalado, 2010).
SECTION 2: EFFECT OF INTERRUPTION
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 the 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.
The event referred to would include force majeure, fortuitous
events or calamities (Rule 22, Sec. 2, RoC).
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Fresh Appeal Period
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 Regional Trial
Court, counted from receipt of the order dismissing a motion
for a new trial or motion for reconsideration (Neypes et.al
vs. CA, G.R. No. 141524, September 14, 2005).
Q: Under Rule 41, Section 3, petitioners had 15 days from
notice of judgment or final order to appeal the decision of the
trial court. On the 15th day of the original appeal period
(March 18, 1998), petitioners did not file a notice of appeal
but instead opted to file a motion for reconsideration.
According to the trial court, the MR only interrupted the
running of the 15-day appeal period. It ruled that petitioners,
having filed their MR on the last day of the 15-day
reglementary period to appeal, had only one (1) day left to
file the notice of appeal upon receipt of the notice of denial
of their MR. Petitioners, however, argue that they were
entitled under the Rules to a fresh period of 15 days from
receipt of the final order or the order dismissing their MR.
Petitioners here filed their notice of appeal on July 27, 1998
or five days from the receipt of the order denying their MR.
Whether petitioners filed their notice of appeal in time?
A: Yes. Petitioners here filed their notice of appeal five days
from receipt of the order denying their motion for
reconsideration on July 22, 1998. Hence, the notice of
appeal was well within the fresh appeal period of 15 days, as
already discussed. Thus, petitioners seasonably filed their
notice of appeal within the fresh period of 15 days, counted
from July 22, 1998 (the date of receipt of notice denying their
motion for reconsideration).
To recapitulate, a party litigant may either file his notice of
appeal within 15 days from receipt of the Regional Trial
Courts decision or file it within 15 days from receipt of the
order (the final order) denying his motion for new trial or
motion for reconsideration. Obviously, the new 15-day period
may be availed of only if either motion is filed; otherwise, the
decision becomes final and executory after the lapse of the
original appeal period provided in Rule 41, Section 3
(Neypes et.al vs. CA, G.R. No. 141524, September 14,
2005).
RULES 23 – 29: MODES OF DISCOVERY
Rules 23 to 28 provide for the different modes of
discovery that may be resorted to by a party to an action:
1. Depositions pending action (Rule 23);
2. Depositions before action or pending appeal
(Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents or things
(Rule 27); and
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6. Physical and mental examination of persons
(Rule 28).
Rule 29 – Legal sanctions for the refusal of the party to
comply with such modes of discovery lawfully resorted to
by the adverse party.
RULE 23: DEPOSITIONS PENDING ACTION
SECTION 1: DEPOSITIONS PENDING ACTION,
WHEN MAY BE TAKEN
When taken: Upon ex parte motion of a party
Whose deposition may be taken: Testimony of any
person, whether a party or not at the instance of any party.
3. Under such limitations as the court may order
under Secs. 16 and 18 of Rule 23.
SECTION 3: EXAMINATION AND
CROSS-EXAMINATION
The deponent may be examined or cross-examined
following the procedures for witnesses in a trial. He has
the same rights as a witness and may be impeached like
a court witness (Rule 23, Sec. 3, RoC).
The officer before whom the deposition is taken does
not have the power to rule upon objections to the
questions. He should merely have such objections
noted in the deposition (in relation to Sec. 17).
SECTION 4: USE OF DEPOSITIONS
Two modes of deposition taking:
1. Deposition upon oral examination; or
2. Deposition upon written interrogatories.
The attendance of witness may be compelled by
subpoena as provided in Sec. 8, Rule 21.
SECTION 2: SCOPE OF EXAMINATION
The deponent may be examined on all matters:
1. Not privileged
Examples of Privileged Communication:
a. Between husband and wife;
b. Between attorney and client;
c. Between medical practitioner and
patient;
d. Between minister or priest and penitent;
and
e. Communications made to a public officer
in official confidence during his term or
afterwards (Rule 130, Sec. 24, RoC).
Other Privileged Communications:
a. Voters may not be compelled to disclose
for whom they voted;
b. Bank deposits;
c. Editors may not be compelled to disclose
the source of published news;
d. Trade secrets; and
e. Information contained in tax census
returns.
2. Which are relevant to the subject of pending
action made by the pleadings or likely to arise
under the pleadings; and
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DEPONENT
USED
BY
Person who is Any
not a party.
party.
PURPOSE
Contradicting
impeaching
testimony
deponent
witness
Any purpose:
or
the
of
as
A party or of
anyone who at
the time of
Any
admission
taking
the
contained in the
deposition
deposition
is
was an officer,
evidence per se and
director,
or
may
be
used
managing
Adverse against
the
agent of a party
deponent
without
public
or
need to present
private
deponent
as
corporation,
witness in court.
partnership, or
association,
which is a
party.
Any purpose if the
deponent-witness is
not available under
the
following
Witness,
circumstances:
Any
whether
a
a. Witness is dead
party.
party or not.
b. Witness resides
more
than
100kms from the
place of trial or
hearing
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c. Witness is out of
the Philippines,
unless
is
appears that his
absence
was
procured by the
party offering the
deposition
d. Witness
is
unable to attend
or
testify
because of age,
sickness,
infirmity,
or
imprisonment
e. The
party
offering
the
deposition has
been unable to
procure
the
attendance
of
the witness by
subpoena 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.
Where depositions may be used:
1.
2.
3.
At the trial;
At the hearing of a motion;
At the hearing of an interlocutory proceeding.
Deposition may be used against a party who was:
1.
2.
3.
Present at the time of its taking;
Represented at the time of its taking;
Notified of its taking.
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If only part of a deposition is offered in evidence by a party,
the adverse party may require him to introduce, and any
party may introduce any other parts (Rule 23, Sec. 4, RoC).
Q: A took the deposition of C, as an ordinary witness. Must
C still take the witness stand? Why or why not?
A: Yes, C must still take the witness stand. As a general rule,
the deponent must still take the witness stand to verify and
certify his or her deposition. However, it is subject to
exceptions provided for in Rule 23, Sec. 4.
SECTION 5: EFFECT OF SUBSTITUTION
OF PARTIES
Substitution of parties does not affect the right to use
depositions previously taken (Rule 23, Sec. 5, RoC).
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.
Note: The deposition in the former case or proceeding may
be given in evidence against the adverse party who has the
opportunity to cross-examine the deponent and will not be
considered as hearsay (Rule 47, Sec. 47, RoC).
SECTION 6: OBJECTIONS TO ADMISSIBILITY
Subject to the provisions of Sec. 29 of Rule 23, objection
may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason
which would require exclusion of evidence if the witness
were then present and testifying (Rule 23, Sec. 6, RoC).
SECTION 7: EFFECT OF TAKING DEPOSITIONS
While the taking of the deposition of a person does not
make such person a witness of the party taking his
deposition (Rule 23, Sec. 7, RoC).
SECTION 8: EFFECT OF USING DEPOSITIONS
The introduction of the deposition binds the party who
introduces it since he thereby makes the deponent his
witness, except:
1.
2.
If it is introduced to impeach or contradict the
witness; or
If it is the deposition of the opposing party (Rule 23,
Sec. 8, RoC).
SECTION 9: REBUTTING DEPOSITION
At the trial or hearing, any party may rebut any relevant
evidence contained in a deposition whether introduced by
him or her or by any other party (Rule 23, Sec. 9, RoC).
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SECTION 10: PERSONS BEFORE WHOM
DEPOSITIONS MAY BE TAKEN
WITHIN THE PHILIPPINES
Persons before whom depositions may be taken
within the Philippines:
1. Judge;
2. Notary Public; or
3. Any person authorized to administer oaths, if the
parties so stipulate in writing (Rule 23, Sec. 14,
RoC).
SECTION 11: PERSONS BEFORE WHOM
DEPOSITIONS MAY BE TAKEN
IN FOREIGN COUNTRIES
Persons before whom depositions may be taken in
foreign countries:
1. Secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent of
the Republic of the Philippines;
2. Such person or officer as may be appointed by
commission or under letters rogatory; or
3. Any person authorized to administer oaths, if the
parties so stipulate in writing (Rule 23, Sec. 14,
RoC).
SECTION 12: COMMISSION OR
LETTERS ROGATORY
Commission
An instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take
depositions or do any other act by authority of such court
or tribunal (Dasmariñas Garments, Inc. v. Reyes, G.R.
108229, August 24, 1993).
Letters Rogatory
An instrument sent in the name and by the authority of a
judge or court to another, requesting the latter to cause to
be examined, upon interrogatories filed in a case pending
before the former, a witness who is within the jurisdiction
of the judge or court to whom such letters are addressed
(Dasmariñas Garments, Inc. v. Reyes, G.R. 108229,
August 24, 1993).
Distinction
A commission is addressed to officers designated either
by name or descriptive title.
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Letters rogatory are addressed to some appropriate
judicial authority in the foreign state. It may be applied for
and issued only after a commission has returned
unexecuted (Dasmariñas Garments, Inc. v. Reyes,
G.R. 108229, August 24, 1993).
SECTION 13: DISQUALIFICATION BY INTEREST
No Deposition Shall be Taken Before a Person:
1.
2.
3.
4.
A relative within the sixth (6th) degree of affinity or
consanguinity;
An employee or counsel of any of the parties;
A relative within the same degree, or employee of
such counsel; or
Financially interested in the action (Rule 23, Sec.
13, RoC).
NOTE: Section 13 is waivable, so it should be raised
immediately; if not raised it is deemed waived.
SECTION 14: STIPULATIONS REGARDING
TAKING OF DEPOSITIONS
If the parties so stipulate in writing, depositions may be taken
before any person authorized to administer oaths, at any time or
place, in accordance with these Rules and when so taken may
be used like other depositions (Rule 23, Sec. 14, RoC).
SECTION 15: DEPOSITIONS UPON ORAL
EXAMINATION; NOTICE; TIME AND PLACE
A party desiring to take the deposition of any person upon oral
examination shall give to every party to the action a reasonable
notice in writing.
Such notice is required to contain the following:
a.
The time and place for taking deposition and
b.
The name and address of each person to be examined,
if known; if not knows, there must be a general
description sufficient to identify him or particular class
or group to which he belongs (Rule 23, Sec. 15, RoC).
Q: What if the deposition was set at Baguio and the other party
showed up but you were not there. What is the remedy of the
other party?
A: Rule 29. The other party can ask for reimbursement of the
costs incurred during the travel.
SECTION 16: ORDERS FOR THE PROTECTION FOR
THE PROTECTION OF PARTIES AND DEPONENTS
After service of the notice, the court upon motion by any
party or by the person to be examined and for good cause
shown, issue an order for the protection of the parties and
the deponent. For instance, the court may order that the
deposition be taken only at a designated place other than
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the one stated in the notice or that instead of being orally
conducted, the deposition may be taken only on written
interrogatories. It may even issue any other order to
protect the parties and their witnesses from annoyance,
embarrassment, or oppression.
Protection orders can be granted, upon motion
seasonably made before the deposition takes place by
any party or by the person to be examined:
1.
2.
Put the witness on oath; and
Record the testimony of the witness (Rule 23, Sec.
17, RoC).
Taken Stenographically; Exception
GR: The testimony shall be taken stenographically.
1. That the deposition shall not be taken.
a. May be raised on the ground that it is only
made to annoy or embarrass the party, or
that the matters asked are irrelevant to
the case.
2. That the deposition may be taken only at some
designated place other than that stated in the
notice.
3. That the deposition may be taken only on written
interrogatories.
a. Questions are indicated in writing and
sent to the person subject of the
deposition who will answer in writing. The
other party has a period of 10 days to
object or send cross-interrogatories
(Rule 23, Sec. 25, RoC).
NOTE: Oral deposition is better because the
person subjected to it has less time to think.
4. That certain matters shall not be inquired into;
5. That the scope of the examination shall be held
with no one present except the parties to the
action and their officers or counsel;
6. That after being sealed the deposition shall be
opened only by order of the court;
7. That secret processes, developments,
research need not be disclosed; or
The officer before whom the deposition is to be taken shall
personally, or by someone acting under his or her direction
and in his or her presence:
or
8. That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court.
The court may make any other order which justice
requires to protect the party or witness from
annoyance, embarrassment, or oppression (Rule
23, Sec. 16, RoC).
XPN: Unless the parties agree otherwise (Rule 23, Sec. 17,
RoC).
All objections made at the time of the examination:
1.
2.
3.
4.
5.
To the qualifications of the officer taking the
deposition;
To the manner of taking it;
To the evidence presented;
To the conduct of any party; or
To any other objection to the proceedings.
Objections shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the
objections (Rule 23, Sec. 17, RoC).
NOTE: If someone objects, the deposing officer cannot say
“sustained.” The deposing officer will just take note of the
deposition and say “noted.” At the end of the day, it is the
court who will rule on the deposition.
Written Interrogatories
In lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to
the witness and record the answers verbatim (Rule 23, Sec.
17, RoC).
SECTION 18: MOTION TO TERMINATE OR
LIMIT EXAMINATION
A party or the deponent can ask the court to terminate the
deposition if there is bad faith or in such manner as to
unreasonably to annoy, embarrass, or oppress the
deponent or party (Rule 23, Sec. 18, RoC).
SECTION 19: SUBMISSION TO WITNESS;
CHANGES; SIGNING
GR: When the testimony is fully transcribed, the
deposition shall be:
1. Submitted to the witness for examination; and
SECTION 17: RECORD OF EXAMINATION;
OATH; OBJECTIONS
Duty of the Officer
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2. Read to or by him.
XPN: Such examination is waived by the witness and the
parties (Rule 23, Sec. 19, RoC).
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Changes in the Deposition
The witness may desire some changes in form and
substance, in which case such changes will be entered
upon the deposition by the officer with a statement of the
reasons of the witness making such changes (Rule 23,
Sec. 19, RoC).
Signed by the Witness
GR: The deposition shall be signed by the witness.
Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to the deponent
(Rule 23, Sec. 22, RoC).
Duties of the Officer; Summary
The officer must:
1.
Certify the deposition (Rule 23, Sec. 20, RoC);
2.
Seal the deposition (Rule 23, Sec. 20, RoC);
3.
File it with the court or send it by registered mail (Rule
23, Sec. 20, RoC);
4.
Give prompt notice of the deposition’s filing (Rule 23,
Sec. 21, RoC); and
5.
Furnish a copy of the deposition (Rule 23, Sec. 22,
RoC).
XPN: Such signing may be waived:
1. By the parties by stipulation; or
2. If deposition cannot be signed because the
witness is ill, cannot be found or he refuses to
sign (Rule 23, Sec. 19, RoC).
SECTION 23: FAILURE TO ATTEND OF
PARTY GIVING NOTICE
Signed by the Officer
If the deposition is not signed by the witness, the officer
shall sign it and state on the record the attendant facts,
together with the reason given for the non-signing of the
deposition (Rule 23, Sec. 19, RoC).
SECTION 20: CERTIFICATION AND FILING
BY OFFICER
The officer shall:
1. Certify on the deposition that
a. The witness was duly sworn to by him or
her; and
b. The deposition is a true record of the
testimony given by the witness.
2. Securely seal the deposition in an envelope
indorsed with the title of the action and marked
"Deposition of (name of witness);" and
3. Promptly file it with the court in which the action
is pending; or
4. Send it by registered mail to the clerk thereof for
filing (Rule 23, Sec. 20, RoC).
SECTION 21: NOTICE OF FILING
The officer taking the deposition must give prompt notice
of its filing to all the parties (Rule 23, Sec. 21, RoC).
SECTION 22: FURNISHING COPIES
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If the party giving the notice of the taking of a deposition fails
to attend and proceed, but the other party attends in person or
by counsel pursuant to the notice, the court may order the party
giving the notice to pay such other party:
1.
Amount of the reasonable expenses incurred in so
attending; and
2.
Reasonable attorney's fees (Rule 23, Sec. 23, RoC).
SECTION 24. FAILURE OF PARTY GIVING NOTICE
TO SERVE SUBPOENA.
If the party giving the notice of the taking of a deposition
of a witness fails to serve a subpoena and the witness
because of such failure does not attend, but the other
party attends in person or by counsel expecting the
deposition of that witness to be taken, the court may order
the party giving the notice to pay such other party:
1. Amount of the reasonable expenses incurred in
so attending; and
2. Reasonable attorney's fees (Rule 23, Sec. 24,
RoC).
SECTION 25: DEPOSITION UPON WRITTEN
INTERROGATORIES; SERVICE OF NOTICE
AND OF INTERROGATORIES
Notice Upon Taking Deposition
A party desiring to take the deposition of any person upon
written interrogatories shall serve them upon every other
party with a notice stating:
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1. The name and address of the person who is to
answer them; and
2. The name or descriptive title and address of the
officer before whom the deposition is to be taken
(Rule 23, Sec. 25, Par. 1, RoC).
Motion and Order
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:
Cross-Interrogatories
1.
Within ten (10) calendar days thereafter, a party so served
may serve cross-interrogatories upon the party proposing
to take the deposition (Rule 23, Sec. 25, Par. 2, RoC).
Shall not be taken before the officer designated in the
notice; or
2.
Shall not be taken except upon oral examination (Rule
23, Sec. 28, RoC).
Re-direct Interrogatories
Within five (5) calendar days thereafter the latter may
serve re-direct interrogatories upon a party who has
served cross-interrogatories (Rule 23, Sec. 25, Par. 2,
RoC).
Re-cross-Interrogatories
Within three (3) calendar days after being served with redirect interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the
deposition (Rule 23, Sec. 25, Par. 2, RoC).
SECTION 26: OFFICERS TO TAKE RESPONSES
AND PREPARE RECORD
Delivery to Officer
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 (Rule 23, Sec. 26, RoC).
Duty of Officer upon Receipt
The officer shall proceed promptly, in the manner provided by
Sections 17, 19 and 20:
1.
To take the testimony of the witness in response to the
interrogatories; and
2.
To prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the
interrogatories received by him (Rule 23, Sec. 26,
RoC).
SECTION 27: NOTICE OF FILING
AND FURNISHING COPIES
When a deposition upon interrogatories is filed, the officer
taking it shall promptly give notice to all the parties and may
furnish copies to them or to the deponent upon payment of
reasonable charges (Rule 23, Sec. 27, RoC).
SECTION 28: ORDERS FOR THE PROTECTION OF
PARTIES AND DEPONENTS
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SECTION 29: EFFECT OF ERRORS AND
IRREGULARITIES IN DEPOSITIONS
EFFECT OF ERRORS AND
IRREGULARITIES IN DEPOSITIONS
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 (Rule 23, Sec. 29, Par. a,
RoC).
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 (Rule 23, Sec. 29, Par.
b, RoC).
AS TO COMPETENCY OR
RELEVANCY OF EVIDENCE
Objections to the competency of a witness or
the competency, relevancy, or materiality of
testimony are not waived by failure to make
them before or during the taking of the
deposition, unless the ground of the objection
is one which might have been obviated or
removed if presented at that time (Rule 23,
Sec. 29, Par. c, RoC).
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
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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 (Rule 23, Sec.
29, Par. d, RoC).
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) calendar days after service of
the last interrogatories authorized (Rule 23,
Sec. 29, Par. e, RoC).
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 Rules 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 23, Sec. 29, Par. f,
RoC).
The rules on discovery (Rules 24, 25, 26, 27, 28 and 29) are
intended to enable a party to obtain knowledge of material
facts within the knowledge of the adverse party or of third
parties through depositions to obtain knowledge of material
facts or admissions from the adverse party through written
interrogatories; to obtain admissions from the adverse party
regarding the genuineness of relevant documents or relevant
matters of fact through requests for admission; to inspect
relevant documents or objects and lands or other property in
the possession or control of the adverse party; and to
determine the physical or mental condition of a party when
such is in controversy (Koh vs. Intermediate Appellate
Court, G.R. No. L-68102, July 16, 1992).
Depositions (whether by oral examination or written
interrogatories) under Rule 24, interrogatories to parties
under Rule 25, and 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)
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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.
In addition to that, leave of court is also required as regards
discovery by production or inspection of documents or things
in accordance with Rule 27, or physical and mental
examination of persons under Rule 28, which may be
granted upon due application and a showing of due cause
(Republic vs. Sandiganbayan, G.R. No. 152375,
December 16, 2011).
Depositions as means of discovery; implicit
The right of a party to take depositions as means of discovery
is not exactly absolute is implicit in the provisions of the
Rules of Court cited by appellants themselves, sections 16
and 18 of Rule 24, which are precisely designed to protect
parties and their witnesses, whenever in the opinion of the
trial court, the move to take their depositions under the guise
of discovery is actually intended to only annoy, embarrass or
oppress them. In such instances, these provisions expressly
authorize the court to either prevent the taking of a deposition
or stop one that is already being taken (Caguiat vs. Torres,
G.R. No. L-25481, October 31, 1969).
If plaintiff refuses to answer; basis for dismissal of
complaint
If plaintiff fails or refuses to answer the interrogatories, it
may be a good basis for the dismissal of his complaint for
non-suit unless he can justify such failure or refusal. It
should be noted that it is discretionary on the court to
order the dismissal of the action (Santiago Land
Development Company vs. Court of Appeals, G.R. No.
103922, July 9, 1996).
Examination in a criminal procedure
The examination of a witness for the prosecution under
Section 15 of the Revised Rules of Criminal Procedure
may be done only "before the court where the case is
pending." If the deposition is made elsewhere, the
accused may not be able to attend, as when he is under
detention. More importantly, this requirement ensures
that the judge would be able to observe the witness'
deportment to enable him to properly assess his
credibility. This is especially true when the witness'
testimony is crucial to the prosecution's case (Vda. de
Manguerra vs. Risos, G.R. No. 152643, August 28,
2008).
RULE 24: DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
SECTION 1: DEPOSITION BEFORE ACTION;
PETITION
A person who desires to perpetuate his or her own
testimony or that of another person regarding any matter
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that may be cognizable in an court of the Philippines, may
file a verified petition in the court of the place of the
residence of any expected adverse party (Rule 24, Sec.
1, RoC).
Jurisdiction
The Regional Trial Court has jurisdiction to entertain
petition for perpetuation of testimonies because it is
incapable of pecuniary estimation
1. File petition (Rule 24, Sec. 2, RoC);
2. Petitioner shall serve notice to all person named
in the petition (Rule 24, Sec. 3, RoC);
3. If the court is satisfied, it shall issue order granting
the petition (Rule 24, Sec. 4, RoC); and
4. Depositions may then be taken in accordance
with Rule 23 (Rule 24, Sec. 4, RoC).
SECTION 4: ORDER AND EXAMINATION
Venue
Court Order
The place of the residence of the expected adverse party.
SECTION 2: CONTENTS OF PETITION
The petition shall be entitled in the name of the
petitioner and shall show:
1. 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;
2. The subject matter of the expected action and her or
her interest therein;
3. The facts which he or she desires to establish by the
proposed testimony and his or her reasons for
desiring to perpetuate it;
4. The names or a description of the person he or she
expects will be adverse parties and their addresses
so far known; and
5. The names and addresses of the persons o e
examines and the substance of the testimony which
he or she expects to elicit from each, and shall ask for
an order authorizing the petitioner to take the
depositions of the persons to examined named in the
petition for the purpose of perpetuating their
testimony (Rule 24, Sec. 2, RoC).
SECTION 3: NOTICE AND SERVICE
Notices; Requirement
If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall:
1.
Make an order designating or describing the persons
whose deposition may be taken; and
2.
Specifying the subject matter of the examination;
3.
Specifying whether the depositions shall be taken upon
oral examination or written interrogatories (Rule 24,
Sec. 4, RoC).
The depositions may then be taken in accordance with Rule 23
before the hearing.
SECTION 5: REFERENCE TO COURT
For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in
which the action is pending is deemed to refer to the court in
which the petition for such deposition was filed (Rule 24, Sec.
5, RoC).
SECTION 6: USE OF DEPOSITION
If a deposition to perpetuate testimony is taken under Rule 24,
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 (Rule 24, Sec. 6, RoC).
SECTION 7: DEPOSITION PENDING APPEAL
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
(Rule 24, Sec. 3, RoC).
How to Take a Deposition Pending Appeal
NOTE: At least 20 calendar 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 (Rule 24, Sec.
3, RoC).
The motion shall state: (NARS)
Summary of Procedure
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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 thereon.
1. The names and addresses of the persons to be
examined;
2. The substance of the testimony which her or she
expects to elicit from each; and
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3. The reason for perpetuating the testimony (Rule
24, Sec. 7, RoC).
Use of Deposition Pending Appeal
Depositions are taken pending appeal with the view to
their being used in the event of further proceedings
the court of origin or appellate court (Rule 24, Sec. 7,
RoC).
If the court finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may make
an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the
same manner and under the same conditions as are
prescribed in Rule 23 (Rule 24, Sec. 7, RoC).
NOTE: The deposition taken under Rule 24 is admissible
in evidence in an action subsequently brought involving
the same subject matter (Rule 24, Sec. 6, RoC).
Use of Deposition Pending Appeal: Subject to
Sections 4 and 5 of Rule 23
Deposition pending appeal is subject to Sections 4 and 5
of Rule 23. If the witness is still alive and there is a
pending case, the witness may be called because
deposition shall not be taken be in lieu of direct
testimony.
Petitioner’s argument that since respondent filed her suit
in the Philippines, she and her witnesses should appear
before the trial court for direct and cross examination is
not correct. It is apparent that the deposition of any
person may be taken wherever he may be, in the
Philippines or abroad. It is to be noted too that the order
to take deposition is interlocutory in character and may
not be questioned by certiorari. Indeed, petitioner is not
deprived of its right to cross-examine the deponents nor
of presenting countervailing testimony (Security Bank
Corp. vs. Del Alcazar, G.R. No. 151310, March 11,
2002).
Only an accused in a criminal case can refuse to take the
witness stand. The right to refuse to take the stand does
not generally apply to parties in administrative cases or
proceedings. The parties thereto can only refuse to
answer if incriminating questions are propounded. This
Court applied the exception – a party who is not an
accused in a criminal case is allowed not to take the
witness stand – in administrative cases/proceedings that
partook of the nature of criminal proceeding or analogous
to a criminal proceeding. It is likewise the opinion of the
Court that said exception applies to parties in civil actions
which are criminal in nature. As long as the suit is criminal
in nature, the party thereto can decline to take the witness
stand.
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The Court treats a party in a civil case as an ordinary
witness, who can invoke the right against selfincrimination only when the incriminating question is
propounded. Thus, for a party in a civil case to possess
the right to refuse to take the witness stand, the civil case
must also partake the nature of a criminal proceeding
(Rosete vs. Lim, G.R. No. 136051, June 8, 2006).
RULE 25: INTERROGATORIES TO PARTIES
SECTION 1: INTERROGATORIES TO PARTIES;
SERVICE THEREOF
Mode of Discovery
This mode of discovery is availed of by any party to the action
for the purpose of eliciting material and relevant facts from the
other party.
Purpose of Written Interrogatories
The purpose of written interrogatories is to assist the parties in
clarifying the issues and ascertaining the facts involved in a
case.
Mode of Discovery; How Availed
The mode of discovery is availed of by filing and serving upon
the adverse party written interrogatories to be answered by the
party served (Rule 25, Sec. 1, RoC).
If the party is a juridical entity—a public or private corporation or
a partnership or association—the written interrogatories served
shall be answered by any of its officers competent to testify in
its behalf (Rule 25, Sec. 1, RoC).
NOTE: Interrogatories to parties 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 the modes of discovery (provided in Rules 23 to 25) 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 such mode. The
reason being that at that time the issues are not yet joined and
the disputed facts are not clear (Republic vs. Sandiganbayan,
G.R. No. 90478, November 21, 1991).
Distinguished from Written Interrogatories in Deposition
If the subject of the interrogatories is the adverse party, the
mode of discovery to be availed of is Rule 25. If it is not an
adverse party, and just an ordinary witness, the party must avail
of interrogatories in a deposition provided in Sec. 25 of Rule 23.
Written interrogatories are delivered to the officer
designated in the notice (Rule 25, Sec. 26, RoC).
Interrogatories to parties are served directly upon the
adverse party.
SECTION 2: ANSWER TO INTERROGATORIES
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CIVIL PROCEDURE REVIEWER
The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making them
(Rule 25, Sec. 2, RoC).
before the trial as to obtain evidence for use upon said
trial.
SECTION 6: EFFECT OF FAILURE TO SERVE
WRITTEN INTERROGATORIES
Interrogatories; When to be Submitted
The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15)
calendar days after service thereof. This period may,
upon motion and for good cause shown, be extended or
shortened by the court (Rule 25, Sec. 2, RoC).
Interrogatories; Where Filed
A party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open
court, or to give a deposition pending appeal (Rule 25,
Sec. 6, RoC).
Without written interrogatories served, the former cannot
be an adverse witness unless allowed by the court for
good cause shown and to prevent a failure of justice.
The answer must be filed in court. Thus, they constitute
judicial admissions.
RULE 26: ADMISSION BY ADVERSE PARTY
SECTION 3: OBJECTIONS TO INTERROGATORIES
SECTION 1: REQUEST FOR ADMISSION
When Presented
The party against whom it is directed may make
objections to the interrogatories. If he or she does so, said
objections shall be presented to the court within ten (10)
calendar days after service thereof, with notice as in case
of a motion (Rule 25, Sec. 3, RoC).
The purpose of this mode of discovery is to allow one party
to request the adverse party in writing to admit certain
material and relevant matters which most likely will not be
disputed during the trial (Riano, 2016).
To avoid unnecessary inconvenience to the parties in going
through the rigors of proof, before the trial, a party may
request the other to:
Effect of Filing of Objections
1.
The filing of the objections shall have the effect of
deferring the filing and service of the answer to the
interrogatories until the objections are resolved, which
shall be at as early a time as is practicable.
2.
SECTION 4: NUMBER OF INTERROGATORIES
No party may, without leave of court, serve more than one
set of interrogatories to be answered by the same party
(Rule 25, Sec. 4, RoC).
SECTION 5: SCOPE AND USE OF
INTERROGATORIES
Interrogatories may relate to any matters that can be
inquired into under Section 2 of Rule 23, and the answers
may be used for the same purposes provided in Section
4 of the same Rule (Rule 25, Sec. 5, RoC).
Field of Inquiry
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 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
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Admit the genuineness of any material and relevant
document described in and exhibited with the
request; or
Admit the truth of any material and relevant matter
of fact set forth in the request (Rule 26, Sec. 1,
RoC).
When Request may be Made
A party may file and serve the written request at any time
after issues have been joined.
SECTION 2: IMPLIED ADMISSION
Each of the matters of which an admission is requested shall be
deemed admitted unless the party to whom the request is
directed files and serves upon the party requesting the
admission a sworn statement either:
1.
Denying specifically the matters of which an admission is
requested.
2.
Setting forth the reasons why he cannot either admit or
deny those matters (Rule 26, Sec. 2, RoC).
When Filed
The sworn statement shall be filed and served within a
period designated in the request but which shall not be
less than fifteen (15) calendar days from the service of
such request, or within such further time as the court may
allow (Rule 26, Sec. 2, RoC).
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NOTE: When a matter is effectively denied in a pleading,
there is no need to ask it again.
Deferment of Compliance
The deferment may be effected by the filing with the court
the objections to the request for admission. Compliance
shall be deferred until such objections are resolved by the
court (Po vs. CA, G.R. No. L-34341, August 22, 1988).
Note: Summary judgment may be granted if the facts
which stand admitted by reason of a party’s failure to deny
statements contained in a request for admission show
that no material issue of facts exists (Allied AgriBusiness Co. vs. CA, G.R. No. 118438, December 4,
1988).
SECTION 3: EFFECT OF ADMISSION
Any admission made by a party:
1. Is for the purpose of the pending action only;
2. Shall not constitute an admission by him or her
for any other purpose; and
3. May not be used against him or her for any other
proceeding (Rule 26, Sec. 3, RoC).
SECTION 4: WITHDRAWAL
Admissions made under this mode of discovery, whether
express or implied, are not final and irrevocable. The court
may allow the party making an admission to withdraw or
amend the admission upon such terms as may be just
(Riano, 2016).
How to Effect Withdrawal
The admitting party should file a motion to be relieved of
the effects of his admission (Riano, 2016).
NOTE: Where the plaintiff failed to answer a request for
admission filed under this Rule, based on its allegations
in its original complaint, the legal effects of its implied
admission of the facts stated in the request cannot be set
aside by its subsequent filing of an amended complaint. It
should have filed a motion to be relieved of the
consequence of said implied admission (Bay View Hotel
vs. Ker & Co, G.R. No. 28237, August 1, 1982).
SECTION 5: EFFECT OF FAILURE TO FILE AND
SERVE REQUEST FOR ADMISSION
GR: A party who fails to file and serve a request for
admission on the adverse party of material and relevant
facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted to
present evidence on such facts (Rule 26, Sec. 5, RoC).
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XPN: Unless otherwise allowed by the court (1) for good
cause shown and (2) to prevent a failure of justice (Rule
26, Sec. 5, RoC).
NOTE: Sec. 6 of Rule 25 is a similar provision on
unjustified failure of a party to avail of written
interrogatories. In Sec. 6 of Rule 25 and Sec. 5 of Rule
26, the court shall determine on a case to case basis
whether or not the non-availment of the two modes of
discovery was justified or the negative sanctions will
unjustly prejudice the erring party.
RULE 27: PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
SECTION 1: MOTION FOR PRODUCTION OR
INSPECTION; ORDER
Upon motion of any party showing good cause therefor, the
court in which an action is pending may order any party to:
a.
Produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and which
are in his or her possession, custody or control; or
b.
Permit entry upon designated land or other property in
his or her possession or control for the purpose of
inspecting, measuring, surveying, or photographing
the property or any designated relevant object or
operation thereon.
The order shall specify the time, place and manner of making
the inspection and taking copies and photographs and may
prescribe such terms and conditions as are just (Rule 27, Sec.
1, RoC).
Purpose of Rule 27
Section 1, Rule 27 provides the mechanics for the production
of documents and the inspection of things during the
pendency of a case. It also deals with the inspection of
sources of evidence other than documents, such as land or
other property in the possession or control of the other party.
This remedial measure is based on ancient principles of
equity. The purpose of the statute is to enable a party-litigant
to discover material information which, by reason of an
opponent's control, would otherwise be unavailable for
judicial scrutiny, and to provide a convenient and summary
method of obtaining material and competent documentary
evidence in the custody or under the control of an adversary
(Solidbank vs. Gateway Electronics Corp., G.R. No.
164805, April 30, 2008).
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The requisites in order that a party may compel the other
party to produce or allow the inspection of documents
or things, viz:
1.
The party must file a motion for the production or
inspection of documents or things, showing good
cause therefor;
2.
Notice of the motion must be served to all other
parties of the case;
3.
The motion must designate the documents, papers,
books, accounts, letters, photographs, objects or
tangible things which the party wishes to be
produced and inspected;
4.
Such documents, etc., are not privileged;
5.
Such documents, etc., constitute or contain
evidence material to any matter involved in the
action, and
6.
Such documents, etc., are in the possession,
custody or control of the other party (Solidbank vs.
Gateway Electronics Corp., G.R. No. 164805,
April 30, 2008).
Test to Determine the Relevancy of Documents and
Sufficiency of their Description
Although the grant of a motion for production of document is
admittedly discretionary on the part of the trial court judge,
nevertheless, it cannot be arbitrarily or unreasonably denied
because to do so would bar access to relevant evidence that
may be used by a party-litigant and hence, impair his
fundamental right to due process.
The test to be applied by the trial judge in determining the
relevancy of documents and the sufficiency of their
description is one of reasonableness and practicability
(Eagle Ridge Development Corp. v. Cameron Granville 3
Asset Management, G.R. No. 204700, November 24,
2014).
When the Motion may be Availed
Rule 27, Section 1 does not provide when the motion may be
used. Hence, the allowance of a motion for production of
document rests on the sound discretion of the court where
the case is pending, with due regard to the rights of the
parties and the demands of equity and justice.
In Eagleridge Development Corporation v. Cameron
Granville 3 Asset Management, Inc., the SC held that a
motion for production of documents may be availed of even
beyond the pre-trial stage, upon showing of good cause as
required under Rule 27 (Commissioner of Internal
Revenue vs. San Miguel Corporation, GR. No. 205045,
January 25, 2017).
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Production or Inspection of Documents or Things
vs. Subpoena Duces Tecum
PRODUCTION/INSPECTION
SUBPOENA
OF DOCUMENTS/THINGS
DUCES TECUM
AS TO NATURE/PURPOSE
A mode of discovery.
A
means
of
compelling production
of evidence.
TO WHOM DIRECTED
Limited to all parties (Rule 27, May be directed to any
Sec. 1, RoC).
person, whether a
party or not (Rule 27,
Sec. 1, RoC).
AS TO NECESSITY OF MOTION
AND NOTICE TO THE ADVERSE PARTY
The order for production, etc. May be issued ex
is issued upon motion with parte.
notice to the adverse.
AS TO SCOPE
The scope is broader as it Since
land
is
may involve entry upon incapable of manual
designated land or other delivery, it cannot be
property for the purpose of subject to a subpoena
inspecting,
measuring, duces tecum.
surveying or photographing
the property (Rule 27, Sec. 1,
RoC).
NOTE: The production of documents affords more opportunity
for discovery than a subpoena duces tecum as, in the latter, the
documents are brought to the court for the first time on the date
of the scheduled trial wherein such documents are required to
be produced.
RULE 28 – PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
SECTION 1: WHEN EXAMINATION MAY BE
ORDERED
Applicable in an action in which the mental or physical
condition of a party is in controversy (Rule 28, Sec. 1, RoC).
When is this mode applicable?
It only applies to an action in which the mental or physical
condition of a party is in controversy.
Examples:
1.
2.
3.
An action for annulment of a contract where the
ground relied upon is insanity or dementia
A petition for guardianship of a person alleged to be
insane
An action to recover damages for personal injury
where the issue is the extent of the injuries of the
plaintiff
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CIVIL PROCEDURE REVIEWER
SECTION 2: ORDER OF EXAMINATION
A motion for the examination is filed in the court
where the action is pending:
1. Showing good cause for the examination,
2. With notice to the party to be examined, and to all
other parties, and
3. Specifying the time, place, manner, conditions,
scope, and person conducting the examination ().
SECTION 3: REPORT OF FINDINGS
The party examined may request delivery of a copy of the
detailed written report, with the findings of the examining
physician. Upon such request and delivery, the party
causing the examination is entitled upon request to
receive a like report of any examination, previously or
thereafter made, of the same mental or physical condition.
If such report is not delivered:
a. Due to refusal of the party examined, the court
may make an order requiring delivery on such
terms as are just;
b. Due to failure or refusal of the physician, the
court may exclude his testimony when offered at
trial (Rule 28, Sec. 3, RoC).
SECTION 4: WAIVER OF PRIVILEGE
By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action or any
other involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter
examine him in respect of the same mental or physical
examination [Sec. 4, Rule 28].
Since the results of the examination are intended to be made
public, the same are not covered by physician-patient privilege
under Sec. 24 (b), Rule 130 (1 Regalado 376, 2010 Ed.).
Q: What is the effect if the physician refuses or fails to make a
report?
RULE 29: REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
SECTION 1: REFUSAL TO ANSWER
Modes of Discovery affected:
1. Deposition upon oral examination; and
2. Deposition upon written interrogatories.
Interrogatories to parties (Rule 25)
A party or other deponent refuse to answer any question
upon oral examination or any interrogatory submitted
under Rules 23 or 25.
Remedy: The proponent may apply for an order to
compel an answer. If granted, the court shall require the
refusing party or deponent to answer the question or
interrogatory.
If the court finds the refusal to answer was without
substantial justification (application is granted). The
court may require:
1. The refusing party or deponent;
2. The counsel advising the refusal; or
3. Both of them
To pay the proponent:
1. The amount of the reasonable expenses incurred
in obtaining the order; and
2. Attorney’s fees.
If the court finds the filing of the application was
without substantial justification (application is denied).
The court may require:
1. The proponent;
2. The counsel advising the filing of the application;
or
3. Both of them
A: The court may exclude his testimony (Rule 28, Sec. 3, RoC).
Q: What is the effect if the party examined requests and obtains
a report on the results of the examination?
A:
1.
2.
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 (Rule 28, Sec. 3, RoC).
He waives any privilege he may have in that action or
any other involving the same controversy regarding the
testimony of every other person who has so examined
or may thereafter examine him (Rule 28, Sec. 4, RoC).
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To pay the refusing party or deponent:
1. The amount of reasonable expenses incurred in
opposing the application; and
2. Attorney’s fees.
SECTION 2: CONTEMPT OF COURT
A party or other witness refuses to be sworn or refuses to
answer any question after being directed to do so by the
court of the place in which the deposition is being taken.
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CIVIL PROCEDURE REVIEWER
Remedy: The refusal may be considered a contempt of
that court
SECTION 3: OTHER CONSEQUENCES
Modes of Discovery affected:
1. Deposition upon oral examination (Rule 24,
RoC);
2. Deposition upon written interrogatories (Rule 24,
RoC);
3. Interrogatories to parties (Rule 25, RoC);
4. Production or inspection of documents and things
(Rule 27, RoC); and
5. Physical and mental examination of persons
(Rule 28, RoC).
Any party or an officer or managing agent of a party
refuses to obey:
1. An order made under Section 1 of this Rule
requiring him to answer designated questions;
2. 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
3. An order made under Rule 28 requiring him to
submit to a physical or mental examination.
Remedy: The court may make such orders in regard to
the refusal as are just and among others the following:
1. An order that the matters regarding which the
questions were asked, or the character or
description of the thing or land, or the contents of
the paper, or the physical or mental condition of
the party, or any other designated facts shall be
take to be established for the purposes of the
action in accordance with the claim of the party
obtaining the order;
2. An order:
a. Refusing to allow the disobedient party to
support or oppose designated claims or
defenses, or
b. Prohibiting him from:
i. Introducing in evidence designated
documents or things or items of
testimony, or
ii. Introducing evidence of physical or
mental condition;
3. An order:
a. Striking out pleadings or parts thereof;
b. Staying further proceedings until the order is
obeyed;
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c.
Dismissing the action or proceeding or any
part thereof; or
d. Rendering a Judgement by default against
the disobedient party; and
4. In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party
or agent of a party for disobeying any of such
orders except an order to submit to a physical or
mental examination.
Rule 29 imposes serious sanctions on the party who
refuses to comply with or respond to the modes of
discovery. But then, there are concomitant limitations to
discovery, even when permitted to be undertaken without
leave of court 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, embarrass, or
oppress the person subject to the inquiry.
Also, further limitations come into existence when the
inquiry touches upon the irrelevant or encroaches upon
the recognized domains of privilege. 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 law (Fortune Corp v. CA, G.R. No.
108119, January 19,1994).
SECTION 4: EXPENSES ON REFUSAL TO ADMIT
GR: If a party refuses to admit the genuineness of any
document or the truth of any matter of fact and serves a
sworn denial thereof, and if the other party later on proves
the genuineness of the document or the truth of such matter
of fact, the court, upon proper application, may order the
former to pay the reasonable expenses in making such proof,
including attorney’s fees (Riano, p. 501, 2020 ed.).
XPN: If the court finds that there were good reasons for the
denial or that admissions sought were of no substantial
importance, no order shall be issued.
NOTE: This Rule is in relation to Rule 26 (Admission by
Adverse Party).
SECTION 5: FAILURE TO PARTY TO ATTEND OR
SERVE ANSWERS
In case of failure of a party to attend depositions or to
serve answers to interrogatories, the court may:
1. Strike out all or any part of the pleading of that
party;
2. Dismiss the action or proceeding or any part
thereof;
3. Enter a judgment by default against that party,
and, in its discretion
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2.
From the pleadings, affidavits, depositions, and
other papers, there is no genuine issue, the court
may render a summary judgment (Rule 35, RoC)t;
3.
Parties have entered into a compromise or an
amicable settlement either during the pre-trial or
while the trial is in progress (Rule 18, RoC; Art.
2028, NCC);
4.
Where the complaint has been dismissed with
prejudice, or when the dismissal has the effect of an
adjudication on the merits (Rule 16, Sec. 5; Rule
17, Sec. 3; Rule 7, Sec. 5, RoC);
SECTION 6: EXPENSES AGAINST THE REPUBLIC
OF THE PHILIPPINES
5.
Where the case falls under the operation of the
Rules on Summary Procedure (Rule 17); and
Expenses and attorney’s fees are not to be imposed upon
the Republic of the Philippines under this Rule.
6.
Where the parties 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.
4. Order him to pay reasonable expenses incurred
by the other, including attorney’s fees.
NOTE: The consequences under Section 5 of Rule 29 will
apply if a party refuses to answer the whole set of written
interrogatories, and not just a particular question. Where
the party, upon whom the written interrogatories is served,
refuses to answer a particular question in the set of
written interrogatories and despite an order compelling
him to answer the particular question, still refuses to obey
the order, Section 3(c) of Rule 29 will apply (Riano, p.
501, citing Zepeda v. China Banking Corporation, 504
SCRA 126, 134).
Courts given ample power to forbid discovery
The provision affords the adverse party, as well as the
deponent, sufficient protection against abuses that may
be committed by a party in the exercise of his unlimited
right to discovery. For this reason, courts are given ample
powers to forbid discovery, which is intended not as an
aid to litigation, but merely to annoy, embarrass or
oppress either the deponent or the adverse party, or both
(De Lopez v. Maceren, G.R. No. L-7424, August 31,
1954).
Schedule of trial
The schedule of trial dates shall be continuous, and within
the following periods:
1.
The court shall allow the plaintiff to present its
evidence within a period of 3 months or 90 calendar
days.
RULE 30 – TRIAL
SECTION 1: SCHEDULE OF TRIAL
Trial is the judicial examination and determination of the
issues between the parties to the action. It is the judicial
process of investigating and determining the legal
controversies between or among the parties.
During the trial, the parties present their respective
evidence of their claims and defenses. Such claims and
defenses shall constitute the bases for the judgment of
the court.
If necessary, the date of the judicial dispute
resolution shall also be included.
2.
3.
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Presentation of evidence on the 3rd-party claim,
counterclaim or cross-claim (4th-, as the case
may be) - upon the determination by the court.
Provided that the total of which shall not exceed 90
calendar days.
XPN: A civil case may be adjudicated upon without the
need for a trial in any of the following cases, where:
1. Pleadings of the parties tender no issues at all, a
judgment on the pleadings may be directed by the
court (Rule 43, RoC));
Initial presentation of defendant’s evidence - not
later than 30 calendar days after the court’s ruling
on plaintiff’s formal offer of evidence.
The court shall allow the defendant to present its
evidence within a period of 3 months or 90 calendar
days.
When Trial is Necessary
GR: A trial is necessary when there are issues to be tried
as result of the specific denials of the material allegations
in the complaint.
Initial presentation of plaintiff’s evidence - not
later than 30 calendar days after the termination of
the pre-trial conference.
4.
Rebuttal evidence - if necessary, the court shall set
the presentation of the parties’ respective rebuttal
evidence which shall be completed within a period
of 30 calendar days.
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The trial dates may be shortened depending on the
number of witnesses to be presented. Provided, that the
presentation of evidence of all parties shall be terminated
within a period of 10 months or 300 calendar days.
SECTION 3: REQUISITES OF MOTION TO
POSTPONE TRIAL FOR ILLNESS OF PARTY OR
COUNSEL
Requisite for postponement on the ground of illness
If there are no 3rd-party (4th- as the case may be) claim,
counterclaim, or cross-claim, the presentation of evidence
shall be terminated within a period of 6 months or 180
calendar days (Rule 30, Sec. 1, RoC).
Example: X is the plaintiff. Y is the defendant. The pretrial conference terminated. The initial presentation of
evidence by X shall be set not later than 30 calendar days
after the termination of the pre-trial conference. X then
shall be given a period within 90 calendar days to present
its evidence. Then the court has to rule upon the formal
offer of evidence by X. After that, Y, as the defendant,
shall be given a period of 90 days within which to present
his defense.
The rebuttal is not a matter of right. The court must
determine whether there will be a rebuttal and surrebuttal,
that will be decided in the course of the trial. If necessary,
the court will set the case for rebuttal.
NOTE: Even before the commencement of the trial
proper, the hearing dates have already been
predetermined.
The court shall decide and serve copies of its decision to
the parties within 90 calendar days from the submission
of the case for resolution, with or without memoranda
(Rule 30, Sec. 1, RoC).
Memorandum
Trial may be suspended on the ground of illness of either
party or counsel by complying with the following:
1.
2.
3.
A motion for postponement must be filed.
It must be supported by an affidavit.
The affidavit shows that the presence of the party or
counsel at the trial is indispensable.
4. That the character of his or her illness is such as to
render his or her non-attendance excusable (Rule
30, Sec. 4, RoC).
SECTION 4: HEARING DAYS AND CALENDAR CALL
Trial must be held from Monday to Thursday at exactly 8:30
am to 2:00 pm (Administrative Circular No. 3-99).
Motions shall be always heard on a Friday (Rule 30, Sec. 1,
RoC).
Courts shall ensure the posting of their court calendars
outside their courtrooms at least 1 day before the scheduled
hearings (OCA Circular No. 250-2015).
SECTION 5: ORDER OF TRIAL
Subject to the provisions of Section 2 of Rule 31, and unless
the court for special reasons otherwise directs, the trial shall
be limited to the issues stated in the pre-trial order and shall
proceed as follows:
1.
It is a written document where you outline all your
submissions, including, among others, citation of
authorities, evidence presented, and arguments. It will be
submitted to aid in the speedy disposition of cases and to
enable the courts to have better control of the progress of
cases.
SECTION 2: ADJOURNMENT AND POSTPONEMENT
GR: The court may adjourn a trial from day to day and to any
stated time, as the expeditious and convenient transaction of
business may require.
XPN: The court has no power to adjourn a trial for a period
longer than one month for each adjournment, nor more than
three months in all.
2.
3.
4.
5.
6.
XPN to XPN: When authorized in writing by the Court
Administrator, Supreme Court.
The party who caused the postponement is warned that the
presentation of its evidence must still be terminated on the
remaining dates previously agreed upon (Rule 30, Sec. 2,
RoC).
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7.
The plaintiff shall adduce evidence in support of his
or her complaint;
The defendant shall then adduce evidence in
support of his or her defense, counterclaim, crossclaim and third-party complaint;
The third-party defendant, if any, shall adduce
evidence of his or her defense, counterclaim, crossclaim and fourth-party complaint;
The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
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;
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
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
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respective memoranda or any further pleadings
(Rule 30, Sec. 5, RoC).
On presentation of rebuttal evidence:
the trial or other proceedings do not require proof and
cannot be contradicted unless previously shown to have
been made through palpable mistake (Yu v. Mapayo 44
SCRA 163, March 29, 1972).
GR: A party cannot submit evidence which should have
been presented as a chief evidence.
SECTION 8: SUSPENSION OF ACTIONS
XPN: The court, for good reasons, for the furtherance of
justice, may allow it.
NOTE: Pre-trial order is important because it limits or sets
the issues to be tackled. Any evidence that is being
presented to an issue which was not stated in the pre-trial
order can be objected to.
However, even if the issue is not included in the pre-trial
order but the parties expressly or impliedly tried the issue,
there is no need to file a motion to admit the amended
pleadings in order to conform to the evidence presented
because the parties precisely agreed to try the issue
which was not included in the pleadings (Rule 30, Sec. 5,
RoC).
SECTION 6: ORAL OFFER OF EXHIBITS
The offer of evidence, the comment or objection thereto,
and the court ruling, shall be made orally in accordance
with Sections 34 to 40 of Rule 132 (Rule 30, Sec. 6, RoC).
SECTION 7: AGREED STATEMENT OF FACTS
The parties to an action may agree, in writing, upon the
facts involved in the litigation, and then submit the case
for judgment on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some facts in issue, the trial
shall be held as to the disputed facts in such order as the
court shall prescribe (Rule 30, Sec. 7, RoC).
When parties request that there is stipulation on a fact, it
means that they agreed that that fact exists and is true.
In a situation where all the facts were already stipulated
on, there will be no controversy anymore as to the facts.
The case can be submitted already for the court to decide.
Q: What is the remedy of a losing party when there was
an RTC judgment based on stipulated facts?
A: Appeal by certiorari under Rule 45 because the issue
here is legal and not factual (facts are agreed). It involves
a pure question of law which means that if the RTC was
acting in its original jurisdiction, it should be elevated to
the Supreme Court via Rule 45.
Rule 129, Sec. 2. Judicial admissions.— Admissions
made by the parties in the pleadings, or in the course of
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Suspension of actions shall be governed by the provisions
on the Civil Code and other laws (Rule 30, Sec. 8, RoC).
EXAMPLE: Under the Civil Code, if both parties
manifested that they are likely to settle the case amicably,
the Court may suspend it to give the parties enough time
to reconcile.
SECTION 9: JUDGE TO RECEIVE; DELEGATION TO
CLERK OF COURT
Reception of Evidence
The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the
parties.
Reception of the evidence may, nevertheless, be delegated
to the clerk of court, who is a member of the bar, in the
following cases:
1.
2.
3.
In default hearings;
In ex parte hearings;
In any case by written agreement of the parties
(Rule 30, Sec. 9, RoC).
GR: A party shall present the evidence before a judge of the
court where the case is pending.
XPN: In cases of default, ex parte hearings, any agreement
by the parties, the evidence may be received by the clerk of
court provided that he is a lawyer.
XPN to the XPN: The clerk of court acting as a person who
receives evidence does not have the power to rule on
objections, his only duty is to note the objections. It is only
the presiding judge of the court where the case is pending
who will rule on the objections.
No provision of law or principle of public policy prohibits a court
from authorizing its clerk of court to receive the evidence of a
party litigant. After all, the reception of evidence by the clerk of
court constitutes but a ministerial task — the taking down of the
testimony of the witnesses and the marking of the pieces of
documentary evidence, if any, adduced by the party present.
This task of receiving evidence precludes, on the part of the
clerk of court, the exercise of judicial discretion usually called for
when the other party who is present objects to questions
propounded and to the admission of the documentary evidence
proffered (Laluan v. Mapaya, 65 SCRA 494, 1975).
RULE 31: CONSOLIDATION OR SEVERANCE
SECTION 1: CONSOLIDATION
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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 (Rule 31, Sec. 1,
RoC).
Consolidation of cases may take place in any of the
following ways:
1. Quasi-consolidation;
2. Actual consolidation; and
3. Consolidation for trial.
Quasi-consolidation
Where all except one of several actions are stayed until
one is tried, in which case the judgment in the one trial is
conclusive as to the others. This is not actually
consolidation but is referred to as such (Producers Bank
v. Excelsa, G.R. No. 152071, 2012).
EXAMPLE: If there are 5 proceedings, 4 are stopped and
only one is tried. In which case, the judgment rendered
therein would be conclusive as to the others.
Actual consolidation
1.
2.
3.
4.
Cases involve same questions of fact or law
To minimize appellant’s expense in pursuing appeal
considering that they are of the same reliefs
Cases involve same parties and basically same
issues to avoid conflicting decisions.
To avoid multiplicity of suits
Q: If cases are consolidated, in which court would the
case be docketed?
A: Normally, it would be consolidated in the court where the
lowest docketed case is. For example, the cases to be
consolidated are Civil Cases No. 0001, 0002, and 0003. It
would be consolidated in Civil Case No. 0001. However,
there would be no more consolidation if one of the cases is
already at the presentation of evidence while the others are
not.
Joint trial
As held in Caños v. Peralta, joint trial is permissible “where
the [actions] 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.”
Where several actions are combined into one, lose their
separate identity, and become a single action in which a
single judgment is rendered. This is illustrated by a
situation where several actions are pending between the
same parties stating claims which might have been set
out originally in one complaint (Producers Bank v.
Excelsa, G.R. No. 152071, 2012).
Joint trial is proper where the offenses charged are similar,
related, or connected, or are of the same or similar character
(Neri v. Sandiganbayan, G.R. No. 202243, August 07,
2013).
EXAMPLE: If there are 5 cases, all will be combined in
Civil Case No. 0001. The separate and distinctive
features of Civil Cases No. 0002, 0003, 0004, and 0005
will be lost.
A: No, it cannot. Because they have different rules.
Consolidation for trial
Where several actions are ordered to be tried together but
each retains its separate character and requires the entry of
a separate judgment. This type of consolidation does not
merge the suits into a single action, or cause the parties to
one action to be parties to the other (Producers Bank v.
Excelsa, G.R. No. 152071, 2012).
Rationale on Consolidation
Consolidation is a procedural device granted to the court as
an aid in deciding how cases in its docket are to be tried so
that the business of the court may be dispatched
expeditiously and with economy while providing justice to the
parties (Producers Bank v. Excelsa Industries, G.R. No.
152071, 2012).
Reasons for consolidating
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Q: Can an ordinary civil case be consolidated with a
proceeding which is summary in nature?
EXAMPLE: An unlawful detainer case and collection suit for
P10M cannot be consolidated. First, there will be a problem
with the jurisdiction because the MTC would have jurisdiction
over the unlawful detainer case while the collection suit for
P10M should be in the RTC. Second, the rules of procedure
would be different.
SECTION 2: SEPARATE TRIALS
The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim, crossclaim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues (Rule 31,
Sec. 2, RoC).
Generally, a lawsuit should not be tried piecemeal, or at least
such a trial should be undertaken only with great caution and
sparingly. There should be one full and comprehensive trial
covering all disputed matters, and parties cannot, as of right,
have a trial divided. It is the policy of the law to limit the
number of trials as far as possible, and separate trials are
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CIVIL PROCEDURE REVIEWER
granted only in exceptional cases. Even under a statute
permitting trials of separate issues, neither party has an
absolute right to have a separate trial of an issue involved.
The trial of all issues together is especially appropriate in an
action at law wherein the issues are not complicated
(Metropolitan Bank v. Sandoval, G.R. No. 169677,
February 18, 2013).
XPN:
NOTE: In a separate trial, the one separated from the
main case will not be able to participate therein. Hence, a
request for separate trial must be denied if the issues
involved are not complicated or are basically the same.
NOTE: The consent of a party who has been declared in
default is not necessary for the designation of the clerk of
court as commissioner. Such party is not entitled to
participate in the proceeding, his only right thereto is to be
notified of the proceedings and receive copies of the
pleadings thus filed (Wassmer v. Velez, G.R. No. L-20089,
December 26, 1964).
GR: No separate trial because in so doing, separated
party will not be able to participate.
XPN: Permitted only when there are extraordinary
grounds for conducting separate trials on different issues
raised in the same case, or when separate trials of the
issues will avoid prejudice, further convenience, promote
justice, or give a fair trial to all parties (Metropolitan Bank
v. Sandoval, G.R. No. 169677, February 18, 2013).
RULE 32: TRIAL BY COMMISSIONER
SECTION 1: REFERENCE BY CONSENT
By written consent of both parties, the court may order
any or all of the issues in a case to be referred to a
commissioner to be agreed upon by the parties or to be
appointed by the court. As used in these Rules, the word
"commissioner" includes a referee, an auditor and an
examiner (Rule 32, Sec. 1, RoC).
NOTE: Trial by commissioners is not mandatory; not a
matter of right. Parties would be required to submit names
of the commissioners and they would both agree as to it.
SECTION 2: REFERENCE ORDERED ON MOTION
When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a
reference to a commissioner in the following cases:
1. 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;
2. 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.
3. 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 (Rule 32, Sec. 2, RoC).
GR: Trial by commissioner not mandatory.
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1.
2.
In expropriation cases where what would be
decided is the issue of just compensation; and
In cases of partition where the parties do not agree
to amicably partition the co-owned properties.
SECTION 3: ORDER OF REFERENCE; POWERS OF
THE COMMISSIONER
When a reference is made, the clerk shall forthwith furnish
the commissioner with a copy of the order of reference. The
order may specify or limit the powers of the commissioner,
and may direct him or her 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 or her 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 or her
and to do all acts and take all measures necessary or proper
for the efficient performance of his or her duties under the
order. He or she may issue subpoenas and
subpoenas duces tecum, swear witnesses, and unless
otherwise provided in the order of reference, he or she may
rule upon the admissibility of evidence. The trial or hearing
before him or her shall proceed in all respects as it would if
held before the court (Rule 32, Sec. 3, RoC).
NOTE: Unlike the clerk of court who can only be appointed
to receive evidence ex parte, commissioners have the power
to rule on admissibility of evidence.
SECTION 4: OATH OF COMMISSIONER
Before entering upon his or her duties the commissioner
shall be sworn to a faithful and honest performance
thereof (Rule 32, Sec. 3, RoC).
NOTE: A commissioner is an officer of the court.
SECTION 5: PROCEEDINGS BEFORE
COMMISSIONER
Upon receipt of the order of reference and unless
otherwise provided therein, the commissioner shall
forthwith set a time and place for the first meeting of the
parties or their counsel to be held within ten (10) calendar
days after the date of the order of reference and shall
notify the parties or their counsel (Rule 32, Sec. 5, RoC).
SECTION 6: FAILURE OF PARTIES TO APPEAR
BEFORE COMMISSIONER
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CIVIL PROCEDURE REVIEWER
If a party fails to appear at the time and place appointed,
the commissioner may proceed ex parte or, in his or her
discretion, adjourn the proceedings to a future day, giving
notice to the absent party or his or her counsel of the
adjournment (Rule 32, Sec. 6, RoC).
SECTION 7: REFUSAL OF WITNESS
The refusal of a witness to obey a subpoena issued by
the commissioner or to give evidence before him or her,
shall be deemed a contempt of the court which appointed
the commissioner (Rule 32, Sec. 7, RoC).
NOTE: Contempt here refers to indirect contempt
wherein a separate case must be filed to this effect.
SECTION 8: COMMISSIONER SHALL AVOID
DELAYS
It is the duty of the commissioner to proceed with all
reasonable diligence. Either party, on notice to the parties
and commissioner, may apply to the court for an order
requiring the commissioner to expedite the proceedings
and to make his or her report (Rule 32, Sec. 8, RoC).
SECTION 9: REPORT OF COMMISSIONER
Upon the completion of the trial or hearing or proceeding
before the commissioner, he or she shall file with the court
his report in writing upon the matters submitted to him or
her by the order of reference. When his powers are not
specified or limited, he or she shall set forth his or her
findings of fact and conclusions of law in his report. He or
she shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial
evidence presented before him or her (Rule 32, Sec. 9,
RoC).
SECTION 10: NOTICE TO PARTIES OF THE FILING
OF REPORT
Upon the filing of the report, the parties shall be notified
by the clerk, and they shall be allowed ten (10) calendar
days within which to signify grounds of objections to the
findings of the report, if they so desire. Objections to the
report based upon grounds which were available to the
parties during the proceedings before the commissioner,
other than objections to the findings and conclusions
therein, set forth, shall not be considered by the court
unless they were made before the commissioner (Rule
32, Sec. 10, RoC).
SECTION 11: HEARING UPON REPORT
Upon the expiration of the period of ten (10) calendar days
referred to in the preceding section, the report shall be set
for hearing, after which the court shall issue an order
adopting, modifying, or rejecting the report in whole or in
part, or recommitting it with instructions, or requiring the
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parties to present further evidence before the commissioner
or the court (Rule 32, Sec. 11, RoC).
NOTE: Commissioner’s end-product is a report which would
be submitted to the court. The court will then give parties the
time to make comments upon such report to be submitted to
it.
Actions of the court
Upon submission of the parties of their comments to the
court, it may:
1.
2.
3.
Reject or recommit the report to the commissioner;
Adopt the same; or
Partially adopt and partially recommit it.
SECTION 12: STIPULATIONS AS TO FINDING
When the parties stipulate that a commissioner's findings of
fact shall be final, only questions of law shall thereafter be
considered (Rule 32, Sec. 12, RoC).
NOTE: The remedy for an adverse decision in this case is
Rule 45. In this case a party can no longer raise question of
fact as the issue here is purely legal. Because facts are
already agreed, the question now is whether or not the law
was correctly applied to the given set of facts.
SECTION 13: COMPENSATION OF COMMISSIONER
The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party, or apportioned,
as justice requires (Rule 32, Sec. 13, RoC).
RULE 33: DEMURRER TO EVIDENCE
SECTION 1: DEMURRER TO EVIDENCE
When to file 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.
Nature of demurrer to evidence
A demurrer to evidence is a motion to dismiss on the ground
of insufficiency or evidence and is presented after the plaintiff
rests his case. It is an objection by one of the parties in an
action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to
make out the case or sustain the issue. The evidence
contemplated by the rule on demurrer is that which pertains
to the merits of the case (Gonzales v. Bugaay, G.R. No.
173008, February 22, 2012 ).
Demurrer to Evidence vs. Failure of the Complaint to
State a Cause of Action
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CIVIL PROCEDURE REVIEWER
DEMURRER TO
EVIDENCE
Plaintiff goes to trial
and
presents
his
testimonial,
documentary,
and
object evidence. If
based
on
the
presented
evidence,
plaintiff was not able to
prove his cause of
action, the defendant
will file a demurrer to
evidence.
It can be determined
after the plaintiff has
rested his case and
based on the evidence
admitted by the court,
the plaintiff failed to
prove his complaint
FAILURE TO STATE A
CAUSE OF ACTION
If the complaint fails
cause of action, you
answer and raise
affirmative defense
Sec. 12, RoC).
to state a
will file an
it as an
(Rule 8,
It is based on preliminary
objections which can be
ventilated out before the
beginning of the trial (Manila
Banking v. University of
Baguio, G.R. No. 159189,
February 21, 2007).
Ground for Demurrer to Evidence
The only ground for demurrer to evidence is upon
showing that upon the facts and the law, the plaintiff has
shown no right to relief.
Purpose for Demurrer to Evidence
It is an aid or instrument for the expeditious termination of
an action similar to a motion to dismiss which the court or
tribunal may grant or deny.
SECTION 2: ACTION ON DEMURRER TO EVIDENCE
A demurrer to evidence shall be subject to the provisions of Rule
15 (it is in the form of a litigated motion).
The order denying the demurrer to evidence shall not be subject
of an appeal or petition for certiorari, prohibition, or mandamus
before judgment (Rule 33, Sec. 2, RoC).
Q: Will you file a notice of hearing together with that
motion?
A: NO. The court may schedule it for clarificatory hearing
because it is a litigated motion.
Effect of Denial
1.
The defendant shall have the right to present his
evidence.
2. An order denying a demurrer to evidence is not
appealable because it is interlocutory.
Effect of Grant
1.
2.
The case shall be dismissed.
Upon appeal, the appellate court reversing the order
granting the demurrer should not remand the case to
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the trial court. Instead, it should render judgment based
on the evidence submitted by the plaintiff
(Radiowealth Finance Co v. Del Rosario, G.R. No.
138739, July 6, 2000).
Waiver of Right to Present Evidence
If the demurrer is granted but on appeal the order of dismissal is
reversed, the defendant is deemed to have waived his right to
present evidence (Rule 33, Sec. 1, RoC).
Difference between Demurrer to Evidence in Civil and
Criminal Cases
CIVIL CASES
CRIMINAL CASES
AS TO NECESSITY OF LEAVE OF COURT
Defendant need not ask May be filed with or without
for leave of court.
leave of court. However,
leave of court is necessary
so that the accused could
present his evidence if the
demurrer is denied.
AS TO EFFECT OF GRANTING THE DEMURRER
If the court finds plaintiff’s If the court finds the
evidence insufficient, it prosecution’s
evidence
will grant the demurrer by insufficient, it will grant the
dismissing the complaint. demurrer by rendering
judgment acquitting the
accused.
AS TO EFFECT OF DENIAL
If court denies the If
court
denies
the
demurrer, defendant will demurrer:
present his evidence.
a. With
leave
–
accused
may
present
his
evidence
b. Without leave –
accused can no
longer present his
evidence
and
submits the case
for decision based
on
the
prosecution’s
evidence
Since a denial of demurrer of evidence is interlocutory, the judge
does not have the obligation to comply with the constitutional
requirement of stating the facts and law on which the decision is
based. If it was a grant, a final judgment, the judge must take
the law and facts on which the judgment is based
(Nepomuceno v. Comelec, G.R. No. L-60601, December 29,
1983).
RULE 34: JUDGMENT ON THE PLEADINGS
SECTION 1: JUDGMENT ON THE PLEADINGS
Nature of Judgment on the Pleadings
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CIVIL PROCEDURE REVIEWER
It is a judgment rendered by the court if the answer fails
to tender an issue, or otherwise admits the material
allegations of the adverse party’s pleading, or there are
negative pregnant.
The judgment is based exclusively upon the allegations
appearing in the pleadings of the parties and the annexes
thereto, if any, without consideration of any evidence
aliunde
NOTE: There is no issue at all.
The order of the court in Sec. 10 Rule 18 cannot be subject of
appeal nor can it be subject to Rule 65 petition because it is not
a final order.
Q: After pre-trial, can the court still render judgment based
on the pleadings?
A: YES. Sec. 2 of Rule 34 states that the court may motu propio
or on motion render judgment on the pleadings if it is apparent
that the answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleadings. Otherwise,
the motion shall be subject to the provisions of Rule 15 of these
Rules.
Grounds for judgment on the pleadings
The answer fails to tender an issue because of:
1. General denial of the material allegation of the
complaint; or
2. The answer admits material allegations of the
adverse party’s pleadings (Rule 34, Sec. 1,
RoC).
Instances when judgment on the pleadings is NOT
applicable
1. Actions for declaration of nullity of marriage,
annulment of marriage or for legal separation;
2. Unliquidated damages;
3. Insufficiency of fact – amendment is the remedy.
Note: When it appears, that not all the material
allegations of the complaint were admitted in the answer,
because some of them were either denied or disputed,
and the defendant has set up certain special defenses
which, if proven, would have the effect of nullifying
plaintiff’s main cause of action, judgment on the pleadings
cannot be rendered (Philippine National Bank vs.
Aznar, G.R. No. 171805, May 30, 2011).
Rule 34 in connection with Sec. 10 of Rule 18
Sec. 10 Judgment after pre-trial. – Should there be no
more controverted facts, or no more genuine issue as to
any material fact, or an absence of any issue, or should
the answer fail to tender an issue, the court shall, without
prejudice to a party moving for judgment on the pleadings
under Rule 34 or summary judgment under Rule 35, motu
propio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings, without need of position papers or
memoranda. In such cases, judgment should be rendered
within ninety (90) calendar days from termination of the
pre-trial.
The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or
certiorari (Rule 18, Sec. 10, RoC).
NOTE: If parties are still in the pre-trial stage the court on
any basis there is, can on its own or upon motion of the
party render judgment on the pleadings.
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Judgment on the pleadings is improper when the answer to the
complaint tenders several issues (Municipality of Tiwi v.
Betito, G.R. No. 171873, July 9, 2010).
Essential question when a motion for judgment on the
pleadings is filed; whether there are issues generated by
the pleading
When a motion for judgment on the pleadings is filed, the
essential question is whether there are issues generated by the
pleadings. In a proper case for judgment on the pleadings, there
is no ostensible issue at all because of the failure of the
defending party’s answer to raise an issue.
RULE 35: SUMMARY JUDGMENTS
Summary Judgment
Parties to an action have the right "to a plenary trial of the
case" to ensure that they were given a right to fully
present evidence on their respective claims. There are
instances, however, when trial may be dispensed with.
Under Rule 35, a trial court may dispense with trial and
proceed to decide a case if from the pleadings, affidavits,
depositions, and other papers on file, there is no genuine
issue as to any material fact. In such a case, the judgment
issued is called a summary judgment (Oliver vs. Castillo,
G.R. No. 196251, July 9, 2014).
Judgment on the Pleadings vs. Summary Judgment
JUDGMENT ON THE
SUMMARY JUDGMENT
PLEADINGS
AS TO ISSUES
Judgment
on
the In a summary judgment,
pleadings is proper when the answer filed tenders
the answer filed fails to issues as specific denials
tender any issue, or and affirmative defenses
otherwise admits the are pleaded, but the issues
material allegations in raised are sham, fictitious,
the complaint.
or otherwise not genuine.
AS TO WHO MAY FILE
Filed by a claiming party May be filed by either the
like a plaintiff or a claiming or the defending
counterclaimant.
party.
AS TO BASIS OF JUDGMENT
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CIVIL PROCEDURE REVIEWER
Based on the pleadings
alone.
Based on the pleadings,
affidavits, depositions and
admissions.
AS TO NOTICE REQUIRED
Only a three-day notice A ten-day notice to the
to the adverse party is adverse party is required.
required prior to the date The adverse party in turn
of hearing in a motion for may
serve
opposing
judgment
on
the affidavits, depositions or
pleadings based on the admissions at least three
regular rules on motions. days before the hearing.
AS TO JUDGMENT
a. May be an
On the merits
interlocutory order,
in case of partial
summary judgment
b. On the merits
Genuine Issue vs. Sham/Fictitious Issue
A genuine issue means an issue of fact which calls for
the presentation of evidence. It exists if the answer or
responsive pleading filed specifically denies the material
allegations of fact set forth in the complaint or pleading.
However, if the issue "could be resolved judiciously by
plain resort" to the pleadings, affidavits, depositions, and
other papers on file, the issue of fact raised is sham, and
the trial court may resolve the action through summary
judgment (Oliver vs. Castillo, G.R. No. 196251, July 9,
2014).
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 or her favor
upon all or any part thereof (Rule 35, Sec. 1, RoC).
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 or her favor as to all or any
part thereof (Rule 35, Sec. 2, RoC).
Note: The only time that the court may render a summary
judgment before an answer is filed is with regard to
liquidated damages. In all other instances, the defendant
needs to file an answer so that issues may be joined and that
the court may determine if the issues are substantial or
genuine.
When the moving party is the defendant, his pleadings,
depositions, or affidavits must show that his defense or
denial are sufficient to defeat the claimant’s claim
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If the petitioner opposes and filed his opposition paper, this
must establish a genuine issue of facts to defeat the motion.
When there is no opposition, the court cannot be said to have
acted in grave abuse of discretion in declaring that no
genuine issue was submitted (Estrada v. Consolacion,
G.R. No. L-40948, June 29, 1976).
SECTION 3: MOTION AND PROCEEDINGS THEREON
As to the moving party
The moving party shall file a motion containing the following:
1.
2.
3.
4.
Supporting affidavits;
Depositions;
Admissions; and
Specific law relied upon (Rule 35, Sec. 3, RoC).
Note: For summary judgment to proceed, the movant has
the burden of demonstrating clearly the absence of genuine
issues of facts, or that the issue posed is patently
insubstantial as to constitute a genuine issue (Globe
Asiatique Realty v. Union Bank G.R. No. 229339, July 19,
2019).
The affidavits submitted by the moving party shall be by
persons having personal knowledge of the facts (Estrada v.
Consolacion, G.R. No. L-40948, June 29, 1976).
As to the adverse party
Within 5 calendar days, file a comment and serve supporting
affidavits, depositions, and admissions.
As to the Court
Conduct a hearing if necessary or render judgment based on
the pleadings, supporting affidavits, depositions and
admissions filed when, except as to the amount of damages,
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law (Rule 35, Sec. 3, RoC; Trade and Investment Corp. v.
Philippine Veterans Bank, G.R. No. 233850, July 1, 2019).
“Genuine issue on any material facts”
An issue of material fact exists if the answer or responsive
pleading filed specifically denies the material allegations of
fact set forth in the complaint or pleading.
If the issue of fact requires the presentation of evidence, it is
a genuine issue of fact. However, if it could be resolved
judiciously by plain resort to the pleadings, affidavits or
depositions, the issue of fact raised is sham, and the trial
court may resolve the action through summary judgment
(Olivarez Realty v. Castillo, G.R. No. 196251, July 9,
2014).
In a collection suit where the obligation and non-fulfillment
are admitted by the debtor, with the rate of interest and
amount of damages being the only remaining issue, there is
no genuine issue and a summary judgment may be rendered
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CIVIL PROCEDURE REVIEWER
(Trade and Investment Corp. v. Philippine Veterans
Bank, G.R. No. 233850, July 1, 2019).
Moving party files a motion for summary judgment
with the supporting affidavits, depositions,
admissions, and the specific law relied upon.
The adverse party may file his comment or counteroppositions with the supporting affidavits,
depositions and admissions within 5 days.
its own. The court can only render summary judgment upon
motion of a party.
SECTION 5: FORM OF AFFIDAVITS AND
SUPPORTING PAPERS
Requisites
1.
2.
3.
4.
Hearing, if necessary.
Court shall render judgment when there is no
genuine issue as to any material fact and the moving
party is entitled to the judgment as a matter of law.
NOTE: Any action of the court on a motion for summary
judgment shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus (Rule 35, Sec. 3,
RoC).
SECTION 4: CASE NOT FULLY ADJUDICATED ON
MOTION
Summary judgment is a device for weeding out sham
claims or defenses at an early stage of the litigation, thereby
avoiding the expense and loss of time involved in a trial
(TIDCOR vs. PVB, G.R. 233850, July 1, 2019).
SECTION 6: AFFIDAVITS IN BAD FAITH
Affidavits in bad faith or solely for the purpose of delay
Sanctions:
1.
Partial Summary Judgment
If on motion, judgment is not rendered upon the whole case
or for all the reliefs sought and a trial is necessary, the court
may ascertain what material facts exist without substantial
controversy, including the extent to which the amount of
damages or other relief is not in controversy, and direct such
further proceedings in the action as are just. The facts
ascertained shall be deemed established, and the trial shall
be conducted on the controverted facts (Rule 35, Sec. 4,
RoC).
A partial summary judgment is an interlocutory order and not
a final order. Thus, no appeal may be filed. The remedy of
the party is to go to trial and wait for the judgment of the court
in the case.
An order granting a motion for summary judgment which fully
determines the rights and obligations of the parties and
leaves no other issue unresolved, except the amount of
damages, is a final judgment (Trade and Investment Corp.
v. Philippine Veterans Bank, G.R. No. 233850, July 1,
2019).
NOTE: When the case is still in the pre-trial stage, the court,
on its own or upon motion of a party, render judgment on the
pleadings or summary judgment.
When the case is already in the trial stage, the court can still,
on its own or upon motion of a party render a judgment on
the pleadings, but it cannot render a summary judgment on
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Shall be made on personal knowledge;
Shall set forth such facts as would be admissible in
evidence;
Shall show affirmatively that the affiant is competent
to testify to the matters stated therein;
Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto
or served therewith.
2.
The court shall forthwith order the offending party or
counsel to pay to the other party:
a. Amount of the reasonable expenses which
the filing of the affidavits caused him or her to
incur,
b. Attorney's fees,
It may, after hearing further adjudge the offending party
or counsel guilty of contempt.
The real test of a motion for summary judgment is whether the
pleadings, affidavits and exhibits in support of the motion are
sufficient to overcome the opposing papers and to justify a
finding as a matter of law that there is no defense to the action
or that the claim is clearly meritorious (Grand Farms, Inc. and
Philippine Shares Corporation vs. CA, G.R. 91779, February
7, 1991).
RULE 36: JUDGMENTS, FINAL ORDERS and ENTRY
THEREOF
NOTE: This Rule involving judgments, final orders and
entry of judgments only apply to final judgments and NOT
to interlocutory orders.
Final Judgments v. Interlocutory Order
FINAL JUDGMENTS
There is nothing else left
for the court to do.
INTERLOCUTORY
ORDER
There is something left to
be done by the courts.
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CIVIL PROCEDURE REVIEWER
It is one that finally
disposes of a case.
It is an adjudication on
the
merits
which
declares
categorically
the rights and obligations
of the party (Neypes v.
CA, G.R. No. 141524,
September 14, 2005)
e.g.
An
order
GRANTING a Motion to
Dismiss. This is because
there is nothing left to be
done. The
case
is
dismissed.
It does not dispose of the
case completely.
This involves a collection case in the MTC. MTC rendered
judgment. The judgment was appealed to RTC. RTC
rendered a judgment basically saying that it is adopting the
judgment of the MTC.
It leaves something more to
be done on the merit.
This RTC judgment was challenged as unconstitutional
for not stating the facts and law on which it was based
e.g. an order DENYING a
Motion to Dismiss. This is
because there is still
something left to be done
by the court, such as,
conducting trial.
RULING: The decision does not measure up to the
constitutional command that the decision rendered by the
court should distinctly state the facts and the law on which it
is based. While it is true there is one case, Fransisco v.
Permschool, where a memorandum decision was just
appended. This memorandum decision merely incorporated
the decision of the MTC. In other words, by way of reference,
“finding the MTC decision correct and AFFIRMED”
NOTE: Interlocutory orders are not decisions or
judgments within the constitutional definition. They only
determine incidental matters that do not touch on the
merits of the case or put an end to the proceedings.
Memorandum decision
It is a decision of the appellate court which adopts the
findings and the conclusion of the trial court.
Requisites for a valid memorandum decision:
1. Such decision must not simply incorporate the
findings of facts and conclusion of law, it must
also provide direct access to the facts and the
law being adopted, which must be contained in
a statement attached to the decision and made
an indispensable part of the decision.
REASON: Because it is expected that this
requirement will relieve the suspicion that no
study was made of the decision of the lower court
and that its decision was merely affirmed without
a proper examination of the facts and the law on
which it is based.
2. The decision being adopted should comply with
Article VIII, Section 14 of the Constitution as well
as Rule 36, Section 1 of the Rules of Court as no
amount of incorporation or adoption will rectify its
violation.
NOTE: This kind of decision may be resorted to
only in cases where the facts are in the main
accepted by both parties and easily determinable
by the judge and no doctrinal complications
involved will require an extended discussion of
the laws involved.
Illustrative case
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The memorandum decision, to be valid, cannot incorporate
the findings of fact and the conclusions of law of the lower
court only by remote reference, which is to say that the
challenged decision is not easily and immediately available
to the person reading the memorandum decision. For the
incorporation by reference to be allowed, it must provide for
direct access to the facts and the law being adopted, which
must be contained in a statement attached to the said
decision
Therefore, the memorandum decision authorized
should actually embody the findings of fact and
conclusions of law of the lower court in an annex
attached to and made an indispensable part of the RTC
decision. In other words, the MTC decision must be
attached.
But if (1) the MTC Decision is incorporated in the RTC
Decision; or if the (2) the copy of the MTC Decision is
attached in the RTC Decision, that becomes a valid
memorandum decision (Lacurom v. Judge Tienzo, AM
No. RTJ-07-2075, October 9, 2007).
Contents of a judgment
1.
2.
3.
4.
Statement of the case
Statement of facts
Issues or assignment of errors
Court Ruling in which each issue is, as a rule,
separately considered and resolved, and
5. Dispositive portion or fallo
NOTE: The fallo is very important as it will the
part that is subject to execution.
The ponente may include an introduction and prologue as
well as an epilogue, especially in cases in which
controversial or novel issues are involved (Velarde v.
Social Justice Society, GR No. 159357, April 28, 2004).
Conflict in dispositive portion and body of decision
GR: Where there is conflict between the dispositive
portion (fallo) and the body of the decision, the fallo
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CIVIL PROCEDURE REVIEWER
controls. This rule rests on the theory that the fallo is the
final order.
XPN: When the conclusion from the body of the decision
is clear as to show that there was a mistake in the fallow,
the body of the decision will prevail (So v. Food Fest
Land, Inc. GR No. 183628, February 9, 2011).
SECTION 1: RENDITION OF JUDGMENTS AND
FINAL ORDERS
Rendition of judgment
It is the filing of the decision, judgment or order with the
clerk of court. It is NOT the date of the writing of the
decision or judgment nor the signing or even the
promulgation thereof.
NOTE: No judgment or order, whether final or
interlocutory, has juridical existence until and unless it is
set down in writing, signed and delivered by the Judge of
the Clerk of Court, for filing, release to the parties and
implementation (Echaus v. CA, GR No. L-57343, July
23, 1990).
Requisites of a valid judgment
1. Court or tribunal must be clothed with the
authority to hear and determine the matter before
it;
2. Court must have jurisdiction over the parties and
subject matter;
3. Parties must have been given the opportunity to
adduce evidence in their behalf;
4. Evidence must have been considered by the
tribunal in deciding the case;
5. Judgment must be in writing, personally and
directly prepared by the judge;
6. Judgment must state clearly the facts and the law
upon which it is based, signed by the judge and
filed with the clerk of court.
A dismissal order must still comply with the formal requisites
laid down in this Section if the court orders the dismissal of
the case pursuant to Section 3, Rule 17 without stating if the
dismissal is with or without prejudice.
An unqualified order of dismissal rendered pursuant to such
rule is deemed to be a dismissal with prejudice. As a
prejudicial dismissal, it is also deemed to be a judgment on
the merits so that the complaint could no longer be re-filed
on the principle of res judicata. Hence, it is imperative that
the dismissal order conform to Section 1, Rule 36 of the
Rules of Court on the writing of valid judgments and final
orders.
Illustrative case
Even if the denial of the motion to dismiss is an interlocutory
order, the SC in this case holds that the perfunctory dismissal
of a Motion to Dismiss for lack of merit should not be the
norm. Such cavalier dispositions can often pose difficulty and
misunderstanding on the part of the aggrieved party
especially when that party would want to elevate the said
order pursuant to Rule 65. How can it be said that the judge
committed grave abuse of discretion in issuing the
interlocutory order if there is no explanation that would
support the order of the court denying the MTD?
This requirement proscribes the common practice of
perfunctorily dismissing a motion to dismiss for "lack of
merit." Such cavalier dispositions 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, usually on certiorari. While
an order denying a motion to dismiss is interlocutory and
non-appealable, however, if the denial is without or in excess
of jurisdiction, certiorari and prohibition are proper remedies
from such order of denial.
A trial court should state in its order the reasons for the
dismissal of the complaint so that when the order is
appealed, the appellate court can readily determine from a
casual perusal thereof whether there is a prima facie
justification for the dismissal (Barrazona v. RTC Br. 61, G.R.
No. 154282, April 7, 2006).
Substantive basis
Original judge transferred to another branch
These formal requisites are consistent with the
constitutional mandate that no decision shall be rendered
by any court without expressing therein clearly and
distinctly the facts and the law on which it is based (Art.
VIII, Section 14 of the 1987 Constitution).
When the presiding judge of the branch to which a case has
been raffled or assigned is transferred to another station, he
leaves behind all the cases he tried with the branch to which
they belong. The judge who takes over his branch inherits all
these cases and assumes full responsibility for them. He may
decide them as they are his cases (People v. Ocfemia, GR
No. 185383, September 25, 2013).
Consequence of non-compliance
A decision that does not conform to the form and
substance required by the Constitution and the law is void
and deemed legally inexistent.
Dismissal due to fault of plaintiff
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XPN: Any of the parties may move that his case be decided
by the judge who substantially heard the evidence and
before whom the case was submitted for decision. This only
applies if the judge who substantially heard the case or to
whom the case was submitted for a decision is transferred to
a coordinate court and NOT when the judge is promoted to
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CIVIL PROCEDURE REVIEWER
whereupon, judgment was entered against him
without proceeding to trial.
a position in a court of higher rank (i.e: from RTC Presiding
Judge to Justice of the CA).
NOTE: The exception will not apply if the said judge has
died, retired or for any reason has left the service or has
become disabled, disqualified, or incapacitated to decide
the case.
Kinds of judgments
Judgment upon
confession
compromise
JUDGMENT UPON
COMPROMISE
1. Judgment upon compromise or consent
It is rendered by the court on the basis of a
compromise agreement entered into between the
parties.
The previous and terms
settled and agreed upon by
the parties to the action and
which are entered in the
record with the consent of
the court.
This is where the parties enter into a compromise
and submit the compromise agreement to the
court and ask the court to render judgment based
on the compromise. The judgment includes the
compromise itself. As long as the compromise
agreement is not contrary to law, public morals,
among others, the judge will approve it.
The parties bargain and
agree on the terms and
conditions
of
their
agreement. There is a
mutual
or
reciprocal
concession.
Compromise: contract whereby the parties, by
making reciprocal concessions, avoid a litigation
or put an end to one already commenced. It is an
agreement between two or more persons, who,
for preventing or putting an end to a lawsuit.
NOTE: When such agreement is submitted to the
court for approval, the court cannot impose a
judgment different from the terms of said
agreement.
2. Judgment by consent
The provisions and terms of which were agreed
upon by the parties, entered into the record, with
the consent of the court. It must be an unqualified
agreement by the parties to be bound on the
judgment.
3. Judgment upon confession
It is an affirmative and voluntary act on the part of
the defendant where the court exercises
supervision in its entry.
Judgment upon confession
1.
After pleading and before the trial, the defendant
confessed the plaintiff’s COA and withdrew or
abandoned his plea or other allegations,
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JUDGMENT BY
CONFESSION
An
affirmative
and
voluntary act of the
defendant himself. The
court exercises a certain
amount of supervision
over
the
entry
of
judgment.
It is one rendered by the
court when a party
expressly agrees to the
other party’s claim or
acknowledges
the
validity of the claim
against him.
Judgment upon the merits
NOTE: There can be a judgment on the merits even
without trial. A ruling based on a motion to dismiss,
without any trial or formal presentation of evidence, can
still be a judgment on the merits.
2.
Clarificatory judgment
One rendered to clarify an ambiguous judgment or one
difficult to comply with. Hence, if the judgment is
difficult to execute due to ambiguity, the remedy is to
file a motion for clarificatory judgment and not to assail
the judgment as void.
NOTE: This only applies when what is involved is a
clerical error and not a correction of an erroneous
judgment.
Judgment nunc pro tunc (now for then)
It is rendered to enter a judgment that was already
rendered but not yet entered. It’s function is to merely
record the act of a court at a former time. There was
already a prior judgment but was not included or
declared by the court. Here, no changes in substance
or any material aspect can be made.
The defendants after service, instead of entering
a plea, admitted that the plaintiff’s cause of action
(COA) was just and rightful.
relicta
by
Amounts to a legal declaration of the respective rights
and duties of the parties based upon disclosed facts
3.
confession
Judgment
Other kinds of judgments
There are two kinds:
1. Judgment by cognovit actionem
2. Judgment
by
verificationem
v.
4.
Judgment sin perjuicio (without prejudice)
This is a VOID judgment: a judgment without statement
of facts in support of its conclusion to be later
supplemented by a final judgment.
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NOTE: Sin perjuicio judgment is NOT a final
judgment, hence, the appellant must wait until a final
judgment before perfecting his appeal.
5.
6.
7.
Judgment by default (Rule 9, Sec. 3, RoC)
Judgment on the pleadings (Rule 34, RoC)
Summary judgment (Rule 35, RoC)
8.
Several judgments
One rendered by a court against one or more
defendants and not against all of them leaving the
action to proceed against the others (Rule 36, Sec.
4, RoC).
9.
Separate judgment
One rendered by a court disposing of a particular
claim, among several others, presented in a case
after determination of the issues material to such
claim and all counterclaims arising out of transaction
or occurrence, which is the subject matter of said
claim (Rule 36, Sec. 5, RoC).
10. Special judgment (Rule 39, Sec. 11, RoC)
11. Judgment for specific acts (Rule 39, Sec. 10, RoC)
12. Judgment on demurrer to evidence (Rule 33, RoC)
13. Conditional judgment
The effectivity of which depends upon the
occurrence or non-occurrence of an event.
judgment. The corporation reasoned that a resort to Judgment
by Confession is an acceptable alternative mode of arriving at a
compromise agreement because of the impossibility of obtaining
a consent to a compromise. A judgment was rendered but said
judgment was void.
In this case, a compromise agreement is valid so long as the
consideration is reasonable and the employees signed the same
voluntarily with the full understanding of what he has entered
into.
Here, it appears that the lead complainant did not inform the
other employees. Therefore, a review of the subject
Compromise Agreement shows a gross disparity between the
amount offered by the Corporation compared the amount the
judgment awarded. The employee won the case however, he
still compromised with a lower award.
So the Supreme Court set aside the said Compromise
Agreement even if it is immediately executory because the said
Compromise Agreement is contrary to law, public morals,
etc. (Sara Lee Philippines v. Macatlang, GR No. 180147,
January 14, 2015).
Procedure after rendition of judgment and postjudgment remedies:
Court
renders
decision
Losing party
Accepts
decision
with
further
contest
NOTE: Judgment of this kind which are conditioned
upon contingency are held to be null and void.
14. Final and executory judgment
15. Amended judgment; and
16. Supplemental judgment
File an
appeal within
15/30 days
from notice
of judgment
Amended or Clarified Judgment v. Supplemental
Decision
AMENDED / CLARIFIED
SUPPLEMENTAL
DECISION
It is an entirely new
decision and supersedes
the original judgment
It does not supersede
the original decision
The
court
makes
a
thorough study of the
original
judgment
and
renders the amended
Serves to bolster or add
to the original judgment
(Solidbank
Corporation v. Court of
Appeals,
GR
No.
166581, December 7,
2015).
Illustrative case
File a motion for
reconsideration
or motion for
new trial within
15/30 days from
notice of
judgment
Collateral Attack; not permitted
If no appeal
is taken or
did not
avail of
remedies,
judgment
becomes
final and
executory.
If granted, the
court:
1.Modifies
decision; or
2.Grants new
trial
If denied,
losing party
may appeal
within a fresh
15-day period
(Neypes v. CA)
GR: Judgments CANNOT be collaterally attacked
XPN: The only way judgment can be attacked collaterally
is when:
The corporation enters into a compromise agreement with some
of its employees which it designates as a confession of
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CIVIL PROCEDURE REVIEWER
1. The court which rendered the judgment is without
jurisdiction (lack of jurisdiction); or
2. There is irregularity in the entry.
SECTION 2: ENTRY OF JUDGMENTS AND FINAL
ORDERS
Judgment becomes final and executory if no appeal or
motion for new trial or reconsideration is filed within the
time provided under the Rules of Court.
Effects of Finality of Judgment:
1. The prevailing party is entitled to execution as a
matter of right;
2. Immutability of judgment; and
3. Res judicata.
Q: A filed a case against MC for collection of 5 million.
MC came to A and asked the latter to not file a case
against her and promised to pay. A believed MC so A filed
a Notice to Dismiss the case. However, MC still did not
pay. Is there something to execute from the case?
A: Nothing because the case was already dismissed.
What should have been done in the first place is a written
Compromise Agreement entered into by A and MC, and
A should have had it approved by the court so when MC
reneged in her promise, A can now ask the court for a writ
of execution to implement the said agreement.
NOTE: It would be best for the Compromise Agreement
to be submitted to the Court asking the latter to render
judgment on the same.
Final Judgments v. Final and Executory Judgments
This is judgment on the
merits. There is nothing
left to be done by the
courts.
A final judgment is not yet
executory
except
judgments
that
are
immediately final and
executory.
FINAL AND
EXECUTORY
JUDGMENT
A judgment attains finality
if neither of the parties
filed a notice of appeal
within the period of time
and after the lapse of the
period of appeal, then the
said judgment will have
become
final
and
executory.
Execution becomes
matter of right.
“The date of finality of the judgment or final order is the date
of its entry”
Entry of judgment is not the mechanical act of entering the
judgment in the book of entry but rather, it is a date determined
by operation of law when the judgment becomes final and
executory.
When judgment becomes final and executory
FINAL JUDGMENT
NOTE: When the court states that “judgment has attained
finality,” it means that the judgment is final and executory.
a
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Before the 1997 amendment, it means the mechanical act of
entering the finality of judgment in the book of entry. So in the
previous versions of the Rules, the date of entry is different from
the date of finality.
The amendment of the old Rules of Court is important in Rule
38 – Petition for Relief from Judgment. The reglementary
period to file a petition for Relief from Judgment is 60 days from
the time you learn of the judgment but not more than 6 months
from entry of judgment.
Example: Louis filed a case against Evie. Louis and Evie
received the judgment both on June 1. They did not file an
appeal, nor an MR or MNT until June 16. So on June 17, the
decision became final and executory. Here, for purposes of Rule
38, the date of entry of judgment shall be deemed to be on June
17 when the judgment became final and executory. Hence Louis
or Evie can file a petition for relief from judgment 60 days from
the time they learn of the judgment but not more than 6 months
from the entry of judgment, June 17, or not beyond December
17.
NOTE: Entry of judgment or final order also assumes
importance in reckoning the 5-year period for execution of
motion under Rule 39, Section 6 of the Rules of Court(.
Illustrative case
The entry of judgment is by operation of law. It will issue as a
matter of course. Even assuming that the SC will reverse its
decision upon the 2nd Motion for Reconsideration, it only means
that the Entry of Judgment first issued may be lifted should the
second Motion for Reconsideration be granted. After the lapse
of the period of appeal or 15 days after the receipt of the order
of the denial of an MR in which there is no more remaining mode
of appeal or 2nd MR available, such entry of judgment happens
by operation of law.
The supplemental motion for reconsideration is technically
a second MR which is generally not allowed, and if allowed,
it is subject to the condition that it does not toll the finality of the
decision being assailed. The filing of the Supplemental Motion
for Reconsideration did not prevent this court’s Resolution dated
July 13, 2009 from becoming final and executory (Club Filipino
Inc., v. Bautista, GR No. 168406, January 14, 2015).
Importance of knowing that judgment has attained
finality
1. For the purposes of execution – the judgment can
now be executed as a matter of right.
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CIVIL PROCEDURE REVIEWER
2. The court can no longer amend the judgment
because the court already loses jurisdiction to
change it.
Execution of judgment by the original court
GR: The power to amend a judgment is inherent in the
court before judgment becomes final and executory. After
the judgment has become final and executory, it becomes
immutable and unalterable, that is, it can no longer be
modified.
XPNs:
EXAMPLE: There are five (5) plaintiffs who filed a case for
damages. A was not proven to be in the bus when it crashed.
So with respect to A, the complaint can be dismissed. As to B,
C, D, and E, judgment can be entered granting the complaint of
B, C, D, and E. Even though all five of them are plaintiffs, the
pieces of evidence that they will present are not the same. All
these plaintiffs will have to present evidence with respect to their
respective claims.
SECTION 4: SEVERAL JUDGMENTS
Several judgments
1. The correction of clerical errors;
2. Nunc pro tunc entries which cause no prejudice
to any party;
3. Void judgments;
4. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable (supervening event).
Illustrative case:
Substantial justice refers to the fact it punishment
imposed was very unfair. The maximum penalty
imposable under BP 22 should be 13,000 (the amount
double the value of the check which is 6,500) , but here
the imposed fine was P80,000. 11 times more than the
correct penalty. Therefore, the Court herein relaxed the
applicability of the Doctrine of the Immutability of
Judgments (Sumbilla v. Matrix Finance Corp, GR No.
197582, June 29, 2015).
Doctrine of immutability
conclusiveness of judgments
SECTION 3: JUDGMENT FOR OR AGAINST ONE OR
MORE OF SEVERAL PARTIES
of
judgments
or
A judgment that has attained finality can no longer be
disturbed. It is settled that upon the finality of the
judgment, the issuance of which is a ministerial duty of the
court.
NOTE: The doctrine applies whether the modification is
attempted to be made by the court rendering it or by the
highest court of the land.
Entry of judgment in appellate courts and cases
governed by small claims and summary procedure
Entry of judgment rendered by appellate courts is
governed by Rule 51, Section 10 and espouses the same
concept as Sec. 2 of this Rule.
Sec. 2 of this Rule shall apply suppletory to cases
governed by Section 23 of the Rule of Procedure for Small
Claims Cases as amended and cases governed by
Summary Procedure.
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This refers to an action against several defendants.
Several judgments are proper where the liability of each
party is clearly separable and distinct from his co-parties
such that the claims against each of them could have been
the subject of separate suits, and the judgment for or against
one of them will not necessarily affect the other.
NOTE: Debtors under a joint obligation have distinct and
separable interests. In a joint obligation, the credit or debts
is divided into as many equal shares as there are creditors
and debtors, the credits or debts being distinct from one
another (Article 1208, New Civil Code).
SECTION 5: SEPARATE JUDGMENTS
Separate judgments
This refers to several claims for relief in action.
It is one rendered by a court disposing of a particular
claim, among several others, presented in a case after
determination of the issues material to such claim and all
counterclaims arising out of the transaction or occurrence,
which is the subject matter of said claim.
The action shall proceed as the remaining claims.
Illustrative case
While ideally, it would have been more prudent for the trial
court to render a single decision with respect to Goroza and
PNB, the procedure adopted by the RTC is, nonetheless,
allowed under Section 4, Rule 36 of the Rules of Court. In
addition, Section 5 of the same rules states that “when more
the one claim for relief is presented in an action, the court (1)
at any stage, (2) 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 propriety of a several judgment is borne by the fact that
SMC's cause of action against PNB stems from the latter's
alleged liability under the letters of credit which it issued. On
the other hand, SMC's cause of action against Goroza is the
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CIVIL PROCEDURE REVIEWER
latter's failure to pay his obligation to the former. As to the
separate judgment, PNB has a counterclaim against SMC
which is yet to be resolved by the RTC (PNB vs. San
Miguel, G.R. No. 186063, January 15, 2014).
NOTE: RTC acted correctly because this is an example
of several judgment. Several judgments are proper only
when the claims are different against the defendants. You
can have several judgments since the claim against
Defendant A is different from the claim against Defendant
B.
Example of separate judgment
Louis and Evie got married. Evie filed a Petition for
Declaration of Nullity on the ground of psychological
incapacity. Aside from this, Evie wants the ACP
dissolved pursuant to Art. 146 of the Family Code. Evie
also wants primary custody over all the children. So
there are 4 issues in this case, to wit:
1.
Validity of the Marriage
2.
Property
3.
Custody of Children
4.
Child Support
EXAMPLE: Louis filed an answer and they were referred
for mediation if there are issues that can be settled
amicably such as the Property, Custody of Children and
Child Support. So if Louis and Evie have agreed on the
Property, Support and Custody and came up with the
compromise agreement, this compromise agreement can
be submitted to the court for its approval in a partial
judgment. Such approval of the court is a separate
judgment. So you now have a separate judgment as to
the Property, Custody and Child Support. You then
proceed to the remaining issue, that is, the validity of the
marriage. So after submitting your evidence, the court will
render another judgment on that issue alone.
The judgment shall terminate the action with respect to
the Property, Support and Custody. The remaining claim
in the above example is the validity of the marriage.
“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.”
Following the abovementioned example, the agreed
compromise on the property is a Complete Separation of
Properties and this agreement has been compromised by
the court. However, the petition for Declaration of Nullity
of Marriage was denied. What happens now to the
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property relationship? It will still be Complete Separation
of Property. You will not go back to ACP since you have
agreed that notwithstanding the judgment on the validity
of the marriage, the court has already approved your
compromise agreement. This is akin to a joint petition to
have the ACP dissolved and adopt a Complete
Separation of Property Regime. Thus, even if the
Petition for Declaration of Nullity of Marriage is
denied, it will not affect the earlier [separate]
judgment.
SECTION 6: JUDGMENT AGAINST ENTITY WITHOUT
JURIDICAL PERSONALITY
This involves actions filed against one or more persons without
juridical personality.
How the action is filed
They may be sued under the name by which they are generally
or commonly known (Rule 3, Sec. 15, RoC).
How the summons is served
Summons may be served on anyone of them or to the person in
charge of the place of business (Rule 14, Sec. 8, RoC).
How the judgment is rendered against them
The judgment shall set out their individual proper names, if
known (Rule 36, Sec. 6, RoC).
Remedies against judgments or final orders
1.
Before finality of judgment or order:
a. Motion for Reconsideration (Rule 37, RoC)
b. Appeal (Rules 40-45 & 48-56b, RoC)
c. New Trial (Rule 37, RoC)
2.
After the finality of the judgment or final order:
a. Relief from judgment or final order
b. Annulment of judgment
c. Petition for Certiorari
d. Collateral attack on judgment if the
challenged judgment is void upon its face or
if the nullity thereof is apparent by virtue of its
own recitals
Dismissal of judgments
A dismissal order which reads: “For failure of the plaintiff to
prosecute, the case is hereby dismissed,” the same is an
adjudication of the merits and thus should have stated the facts
which it is based pursuant to Section 1 of Rule 36 of the RoC.
Failure to comply therewith renders the order null and void.
RULE 37: NEW TRIAL OR RECONSIDERATION
SECTION 1: GROUNDS OF AND PERIOD FOR FILING
MOTION FOR NEW TRIAL AND RECONSIDERATION
Motion for new trial
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CIVIL PROCEDURE REVIEWER
A new trial is a remedy that seeks to temper the severity
of a judgment or prevent a failure of justice. The grant of
a new trial is generally addressed to the sound discretion
of the court which cannot be interfered with unless clear
abuse is shown (Riano, p. 563, 2019 ed.).
PROHIBITED
If the case falls under the
1991 Revised Rule on
Summary Procedure.
If the case falls under the
Rule of Procedure in
Small Claims.
ALLOWED
In environmental cases if
the same is a highly
meritorious case or to
prevent
a
manifest
miscarriage of justice.
When to file?
A motion for new trial is filed within the period for taking
an appeal (Rule 37, Sec. 1, RoC).
If one party has already perfected his appeal, the clause
“upon the expiration of the last day to appeal by any party”
obviously no longer applies to him, but only to the other
party whose period to appeal has not yet expired (Abe
Industries, Inc. v. CA, 162 SCRA 48 (1998)).
Grounds for a motion for new trial
The aggrieved party may move the trial court to set aside
the judgment or final order and grant a new trial on one or
more of the following causes materially affecting the
substantial rights of said party:
1.
2.
3.
4.
The evidence was discovered after trial;
Such evidence could not have been discovered and
produced at trial even with the exercise of reasonable
diligence;
It is material, not merely cumulative, corroborative, or
impeaching; and
The evidence is of such weight that it would probably
change the judgment, if admitted.
The most important requisite in a newly discovered evidence is
that the evidence could not have been discovered and
produced at the trial even with reasonable diligence; hence,
the term "newly discovered" (Tadeja v. People, G.R. No.
145336. February 20, 2013).
SECTION 2: CONTENTS OF MOTION FOR NEW
TRIAL OR RECONSIDERATION AND NOTICE
THEREOF
Form of a motion for new trial
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 (Rule 37, Sec. 2, RoC).
As a rule, notices, pleadings, motions and papers should be
served on a party's counsel of record, at the latter's given
address.
If there is a change in address-notify the court. It is
incumbent upon the parties where the motion will be sent
(PCIB v. Ortiz, 150 SCRA 380 (1987)).
Contents of a motion for new trial
1. Fraud, accident, mistake or excusable
negligence which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has probably been impaired
in his rights; or
2. Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result (Rule 37, Sec. 1,
RoC).
A motion for the cause mentioned in paragraph (a) of Sec. 1
shall be supported by affidavits of merits which may be
rebutted by affidavits.
An affidavit of merit is required in a motion for new trial pursuant
to Section 2 of Rule 37 if the motion for new trial is based on any
of the causes mentioned in subdivision (a) of Section I of Rule
37, to wit, fraud, accident, mistake or excusable negligence. No
similar requirement is imposed for a motion for new trial or
motion for reconsideration under subdivision (c) of the same
section (Mendoza v. Bautista, 121 SCRA 760 (1983)).
A motion for reconsideration shall point out a 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 (Sec. 2, Rule 37,
Sec. 2, RoC).
Newly-discovered evidence; requisites
Pro forma motion
Before a new trial may be granted on the ground of newlydiscovered evidence, It must be shown that:
Non-compliance with requirements under Sec. 2 would
reduce the motion to a mere pro forma motion, which shall
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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
(Rule 37, Sec. 2, RoC).
Contents of motion for reconsideration
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CIVIL PROCEDURE REVIEWER
not toll the reglementary period of appeal (Par. 4, Sec. 2,
Rule 37).
SECTION 3: ACTION UPON MOTION FOR NEW
TRIAL OR RECONSIDERATION
Action upon Motion for New Trial or Reconsideration
The trial court may:
1. Set aside the judgment or final order and grant a
new trial, upon such terms as may be just;
2. Deny the motion; or
3. Amend such judgment or final order accordingly,
if it finds that excessive damages have been
awarded or if the judgment or final order is
contrary to the evidence or law (Sec. 3, Rule 37,
RoC).
SECTION 4: RESOLUTION OF MOTION
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 (Rule 37, Sec. 4, RoC).
Denial of the motion; “fresh period” rule
If the motion for new trial is denied, the movant has a
“fresh period” of 15 days from the receipt or notice of the
order denying or dismissing the motion for new trial within
which to file a notice of appeal for the same reasons and
grounds as the “Fresh Period” Rule governing a denial of
a motion for reconsideration (Neypes v. Court of
Appeals, G.R. No. 141524, September 14, 2005).
SECTION 5: SECOND MOTION FOR NEW TRIAL
The “single motion” rule
No party shall be allowed a second motion for
reconsideration of a judgment or final order (Rule 37,
Sec. 5, RoC).
As a general rule, a party shall not be allowed to file a
second motion for reconsideration of a judgment or final
order. A second motion is prohibited and can only be
allowed on extraordinary persuasive reasons and only
after an express leave shall have first been obtained
(Riano, p. 561, 2019 ed.).
NOTE: Filing of a second motion for reconsideration is a
violation of the omnibus motion rule.
Second motion for new trial
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A motion for new trial shall include all grounds then available.
Those not so included shall be deemed waived. However, when
a ground for a new trial was not existing or available when the
first motion was made, a second motion for new trial may be filed
within the period allowed but excluding the time during which the
first motion had been pending (Rule 37, Sec. 5, RoC).
NOTE: A party may file a second motion for new trial if:
1.
2.
The ground is newly discovered evidence that was not
available despite diligent search when the first motion
for new trial was filed; and
This newly discovered evidence will probably alter the
decision of the court.
SECTION 6: EFFECT OF GRANTING OF MOTION
FOR NEW TRIAL
If the court grants the motion for new trial, the original
judgment or final order shall be vacated, and the action shall
stand for trial de novo. The recorded evidence taken upon
the former trial shall be used at the new trial without retaking
the same if the evidence is material and competent (Rule 37,
Sec. 6, RoC).
Q: A filed a motion for new trial which was grounded on newly
discovered evidence. Will the evidence already adduced
remain?
A: YES. The evidence was already admitted. A will just
present additional evidence.
Q: In a motion for new trial, can the court recall to the witness
stand other witnesses who were already presented?
A: YES. If motion for new trial is granted there will be new
hearing and presentation of evidence.
NOTE: If MR is granted, no new hearing is required. The
nature of the grounds for MR does not require the
presentation of additional evidence.
SECTION 7: PARTIAL NEW TRIAL OR
RECONSIDERATION
If the court finds that a motion affects the issues of the case
as to only a part, or less than all of the matters in controversy,
or only one, or less than all, of the parties to it, the court may
grant a new trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final order
upon the rest (Rule 37, Sec. 7, RoC).
SECTION 8: EFFECT OF ORDER FOR PARTIAL NEW
TRIAL
When there is an order for a partial new trial, i.e., 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
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CIVIL PROCEDURE REVIEWER
enforcement of such judgment or final order until after the
new trial (Rule 37, Sec. 8, RoC).
SECTION 9: REMEDY AGAINST ORDER DENYING A
MOTION FOR NEW TRIAL OR RECONSIDERATION
An order denying a motion for new trial or reconsideration
is not appealed, the remedy being an appeal from the
judgment or final order (Rule 37, Sec. 8, RoC).
Order of denial, not appealable
Grounds for a petition for relief
1. When a judgment or final order is entered, or any
other proceeding is thereafter taken against the
petitioner in any court through fraud, accident,
mistake, excusable negligence or;
2. When the petitioner has been prevented from
taking an appeal by fraud, accident, mistake,
excusable negligence
Extrinsic fraud
The “Fresh Period” Rule does not refer to the period within
which to appeal from the order denying the motion for
reconsideration, but to the period within which to appeal
from the judgment itself because an order denying a
motion for reconsideration is not appealable (Riano, pp.
560-561, 2019 ed.).
The fraud that is a ground for the filing of a petition for relief
is “extrinsic fraud”. It is defined as fraud which the prevailing
party caused to prevent the losing party from being heard on
his action or defense. Such fraud concerns not the judgment
itself but the manner in which it was obtained.
Remedy when motion is denied
NOTE: Extrinsic fraud also justifies motion for new trial, a
motion to set aside an order of default and an action for
annulment of judgment.
An order denying a motion for new trial is no longer
assailable by certiorari under Rule 65 because of the
amendment to Rule 41 by A.M. No. 07-7-12-SC.
Parties who can avail
The remedy available, therefore, would be that prescribed
under Sec. 9 of Rule 37, i.e., to appeal from the judgment
or final order (Riano, p. 567, 2019 ed.).
RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR
OTHER PROCEEDINGS
Petition for relief from judgment
Petition for relief from judgment is a remedy provided by
law to any person against whom decision or order is
entered through fraud, accident, mistake, or excusable
negligence. This remedy is equitable in character,
allowed only in exceptional cases where there is no other
available or adequate remedy provided by law or by the
rules.
Relief from judgment under Rule 38 is a legal remedy
whereby a party seeks to set aside a judgment rendered
against him by a court whenever he was unjustly deprived
of a hearing or was prevented from taking an appeal, in
either case, because of fraud, accident, mistake or
excusable neglect (Quelman v. VHF, G.R. No. 138500,
September 16, 2005).
NOTE: When a party has another remedy available to
him, either Motion for Reconsideration or Motion for New
Trial or appeal from adverse decision, and he has not
prevented by fraud, accident, mistake, or excusable
negligence from filing such motion or appeal, he cannot
avail himself of a petition for relief. If you are still in the
period of appeal, file MR or MNT!
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Petition for relief from judgment is available only to parties in
the proceeding where the assailed judgment is rendered.
A person, who was never a party to the case or even
summoned to appear therein, cannot avail of a petition for
relief from judgment.
When to file
It shall be filed within 60 days after the petitioner learns of
the judgment, final order or proceeding and not more than 6
months after the judgment or final order was entered.
Both periods are not extendible and never interrupted.
NOTE: A petition for relief from judgment is not an available
remedy in the Court of Appeals and Supreme Court.
A petition for relief from judgment in forcible entry and
unlawful detainer cases is a prohibited pleading. The reason
for this is to achieve an expeditious and inexpensive
determination of the cases subject of summary procedure
(Afdal v. Carlos, G.R. No. 173379, December 1, 2010).
Form of the petition
The petition must be:
1. Verified;
2. Accompanied with affidavits;
a. Such affidavits show fraud, accident,
mistake or excusable negligence
3. Show facts constituting petitioner’s good and
substantial cause of action or defense.
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In order for a petition for relief filed under Rule 38 to be
entertained by the court, the petitioner must satisfactorily
show that he has faithfully and strictly complied with the
provisions of said Rule 38 (Arcilla v Arcilla, G.R. No. L46674, September 16, 1985).
Q: Will the filing of petition for relief from judgment hinder
the court from issuing a writ of execution?
A: NO. Remember that a petition for relief is a remedy
available after the judgment or final order has become
final and executory. Hence, the judgment could be subject
of a writ of execution. The petitioner may avail preliminary
injunction to preserve the rights of the parties upon the
filing of a bond in favor of the adverse party.
When the loss of the remedy is due to his own
negligence; Rule 38 will not be granted
The relief afforded by Rule 38 will not be granted to a party
who seeks to be relieved from the effects of the judgment
when the loss of the remedy of law was due to his own
negligence, or mistaken mode of procedure for that
matter; otherwise the petition for relief will be tantamount
to reviving the right of appeal which has already been lost,
either because of inexcusable negligence or due to a
mistake of procedure by counsel. In exceptional cases,
when the mistake of counsel is so palpable that it amounts
to gross negligence, this Court affords a party a second
opportunity to vindicate his right. But this opportunity is
unavailing in the instant case, especially since petitioner
has squandered the various opportunities available to him
at the different stages of this case (Purcon v. MRM
Philippines, G.R. No. 182718, September 26, 2008).
avail of his post- judgment remedies. Assuming that
Jopay did not avail of his post- judgment remedies within
the 15- day period, the judgment has become final to both
parties and the Court by June 21.
If both parties did not file any post- judgment remedy, and
the period lapsed, then the judgment has attained finality
and as a general rule, no court can change its decision
because the decision has become immutable- final and
executory. Since the judgment has become final and
executory, the writ of execution will be issued as a matter
of right.
Second and third paragraph of Section 1
Q: Jackie received her decision on June 1. Hyde received his
on June 5. Jackie won and she did not avail of any postjudgment remedies. Hyde filed a notice of appeal. The RTC
approved Hyde’s appeal and because of that, the Clerk of Court
will sort out- compile the documents of the case and bring it over
to the CA. Once the documents are in custody of the CA, it is
the CA who has jurisdiction over the case. Here, the CA ruled in
favor of Jackie. According to Hyde, he will no longer bring the
case to the SC. When can Jackie file for the issuance of a writ
of execution? Where can she file for such motion?
A: Jackie can only file it with the RTC (2nd paragraph of Section
1) if she attaches to the motion for execution:
1.
The judgment on appeal- a certified
true copy of the judgment of the CA.
2. Entry of that judgment.
Jackie has to go to the CA, get a copy of the judgment and the
entry of judgment that was entered by the Clerk of Court of the
division of the CA, and she should attach it with the motion for
execution that she will file in Court.
RULE 39: EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS
SECTION 1. EXECUTION UPON JUDGMENTS OR
FINAL ORDERS.
Purpose of attaching the copy of judgment and the entry of
judgment: Since the records of the case are no longer with the
RTC, copy of judgment and the entry of judgment will serve as
basis for the RTC in providing a judgment on the motion for
execution.
Execution shall issue as a matter of right, on motion, upon
a judgment or order that disposes of the action or
proceeding upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.
A: In the same situation, Jackie can file the motion for execution
on the appellate (3rd paragraph of Section 1) court. Jackie can
file the motion for execution in the CA so the court can approve
the motion BUT will direct the lower court to issue the writ of
execution.
Execution as a matter of right
The only way you can execute a judgment by way of
a matter of right is if the judgment is already final AND
executory.
EXAMPLE: Gian and Jopay are parties to a case. Gian
received the judgment on June 1 while Jopay received it
on June 5. Gian has a period of 15 days (or until June 16)
to avail of post- judgment remedies. By June 17 and
assuming that no action has been done by Gian, the
judgment becomes final as to him. On the other hand,
Jopay received it on June 5 so he has until June 20 to
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NOTE: If there is a Notice of Appeal and the RTC is acting as a
court of original jurisdiction, the case will fall automatically under
the CA and its assigned errors should be both questions of fact
and law. If the RTC is acting as a court of original jurisdiction,
after being elevated to the CA and the only issue is in regard
with legal issues, the case should fall under the SC under Rule
45 and not with the CA.
Writ of execution
A writ of execution is a document issued by the court to
an officer (sheriff) authorizing the officer to execute the
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judgment of the court. What will be executed is the
dispositive portion- or the “WHEREFORE” part of a case.
If there is a discrepancy between the body and the
dispositive portion, the dispositive portion shall prevail
and be executed.
NOTE: A writ of execution cannot vary because a writ of
execution that varies the judgment is patent nullity.
SECTION 2. DISCRETIONARY EXECUTION.
Generally, when the judgment has already attained
finality, it cannot be amended except its clerical errors or
ambiguity.
Q: Is a motion for issuance of a writ of execution a litigious
or a non- litigious motion? (Refer to Rule 15)
A: It is a litigious motion. Hence, there will be no hearing
for such motion. However, even if it is a non- litigious
motion, and the execution has already been executed,
you can still file your position when it comes to
discretionary execution under Section 2.
Execution of judgment or a final order pending appeal
EXAMPLE: Gretchen won and Robi lost. Gretchen
received the judgment on June 1 so her last day to avail
of a post- judgment remedy is on June 16. Robi received
the judgment on June 5 so he has until June 20 to avail of
his remedies. Robi filed a notice of appeal on June 7.
Here, even if Robi filed an appeal, Gretchen can do
anything within her reglementary period. Meaning, her
notice of appeal will not bar Robi from seeking postjudgment reliefs.
Robi filed an appeal on June 7. Here, the court still has
jurisdiction over the case because even if he has already
taken an appeal, Gretchen has a period until June 16 to
do what whatever she wants with the judgment and
because the records are still with the court and has not
been elevated yet to the CA, Gretchen can file a motion
for execution pending appeal.
If it is a motion for execution pending appeal, it is
incumbent upon the movant to file it:
1.
2.
3.
When the court still has jurisdiction
The records are still in possession of the court
It is incumbent upon the movant to show good cause
on why the court should grant a discretionary
execution.
Q: What is an example of good cause?
A: Recovery of perishable items can be considered a good
cause since there is an immediate necessity to act on the
case to prevent the items from spoilage. An appeal in this
instance would be impractical.
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Execution of several, separate or partial judgments
A several, separate or partial judgment may be executed
under the same terms and conditions as execution of a
judgment or a final order pending appeal.
NOTE: Execution pending appeal under Section 2 or
discretionary execution does not apply when the judgment
you want to execute is a CA judgment. Execution pending
appeal applies only in the judgment of the trial court and
not against the CA decision (Heirs of the Late Justice
Reyes v. CA, G.R. Nos. 135180-181, August 16, 2000).
SECTION 3. STAY OF DISCRETIONARY EXECUTION.
Q: Thor won and Loki lost. Loki filed a notice of appeal.
Thor filed for execution pending appeal which was
granted. What is the remedy of Loki?
A: Loki can post a supersedeas (to supersede) bond. The
condition of such bond is the performance of the judgment
or order allowed to be executed in case the bond shall
finally be sustained in whole or in part. Kung matalo
talaga, you can go after this bond.
NOTE: The bond thus given may be proceeded against
on motion with notice to the surety. Further, Section 3 only
applies to Section 2 or Discretionary Execution.
SECTION 4. JUDGMENTS NOT STAYED BY APPEAL.
Injunction, receivership, accounting and support (IRAS)
A winning judgment on injunction, receivership, accounting
and support, even if not yet final and executory or even if no
appeal was made, can file for a motion for execution – and
such motion will subsequently be executed. In other words,
the appeal of the case will not stay its execution.
GR: When a party elevates by appeal (RTC- CA) the
decision, he cannot execute such because the decision is
not yet final and executory. The appeal stays the execution
and the only way he can execute it is through discretionary
execution.
XPNs: I-R-A-S
1.
2.
3.
4.
Injunction
Receivership
Accounting
Support
If it is a case of IRAS, even if a party appeals the decision to
the CA, the winning party can move for the execution
pending appeal and such motion will be granted. In this case,
there is no need to prove good cause since Section 4 of Rule
39 provides for judgments not stayed by appeal.
If the judgment obligor does not want the decision to be
executed, he shall post a bond or he may go to the appellate
court and ask the appellate court to make an order
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suspending its execution- restoring the IRAS. The staying of
the execution shall be made upon the posting of the bond.
The judgment obligor will have to post a bond to serve as a
proper security for the protection of the rights of the adverse
party.
SECTION 5. EFFECT OF REVERSAL OF EXECUTED
JUDGMENT
This applies in a case wherein the judgment involved
IRAS and such judgment was executed even if it was
pending appeal. However on appeal, the judgment on
IRAS was reversed.
EXAMPLE: Jess won against Dean so Jess filed an
execution pending appeal where the court has still
jurisdiction and the records are still with it. Meanwhile,
Dean filed for an appeal. The execution pending appeal
was granted because Jess was able to show good cause.
The properties now of Dean were executed and were sold
to public auction. The proceeds were given to Jess.
However, the CA reversed the decision and ruled in favor
of Dean. When the reversal now becomes final and
executory, the trial court, upon motion of Dean can issue
a motion for restitution. Jess can be compelled to return
whatever amount he got from Dean.
NOTE: The execution by way of motion is for a period of
5 years and another 5 years by another independent
action.
SECTION 6. EXECUTION BY MOTION OR BY
INDEPENDENT ACTION
A final and executory judgment or order may be executed
on motion within 5 years from the date of its entry.
Date of entry: the date when the decision became final
and executory. It is not the date when the judgment was
entered in the book of entries.
During the 5 year period, the judgment obligee has to file
the motion within that 5- year period and he has to
execute the judgment within that 5-year period.
A: He can file a separate case, which is an independent
action called petition for revival of judgment. Such petition
for revival of judgment should be filed within 5 years after the
lapse of the period and before it is barred by prescription,
which is ten (10) years from the date the judgment became
final.
NOTE: The five (5) and ten (10) year period is computed
from the date of the entry of judgment.
A revival of judgment does not require a relitigation of the
case. The judgment obligee only needs prove that he has a
final and executory judgment and that judgment was not
executed during that 5-year period by way of motion.
Jurisdiction over action for revival of judgment
The RTC has jurisdiction over an action for revival of
judgment because it is an action incapable of pecuniary
estimation.
SECTION 7: EXECUTION IN CASE OF DEATH OF A
PARTY
Q: If the plaintiff filed a case against the defendant and either of
them subsequently died. Does that mean that the case will be
dismissed?
A: NO. The case will only be dismissed if the case is purely
personal in nature, such as a petition for legal separation.
Money claims
Under Section 20 of Rule 3, if the action is about a money claim
(expressed or implied) the death will not cause the dismissal of
the case, but it will proceed until entry of judgment. You cannot
execute it. Once there is entry of judgment, the case shall be
brought to the appropriate probate court. There is no need to
relitigate the case since there is already a final judgment.
Substitution of parties
In case of the death of a party, execution may be enforced in the
following manner:
1.
In case of the death of the judgment obligee and
assuming the action survives death, and a writ of
execution has been issued:
a. It can be enforced upon the application of his
executor or administrator, or successor in
interest.
2.
In case of the death of the judgment obligor:
a. Before levy
i. Judgment will issue against his
executor
or
administrator
or
successor in interest, if the judgment
is for the recovery of real or personal
property, or the enforcement of a lien
thereon.
Q: If the judgment obligee filed the motion for execution
within the five (5) year period, can the judgment be
executed after the lapse of such period?
A: No. Even if he filed the motion for execution within the
5-year period, it cannot be executed after such because
the court no longer has jurisdiction to execute and
implement the writ of execution.
Revival of judgment
Q: What is the judgment obligee’s remedy for failure to
execute within the five (5) year period (provided that he
filed the motion within such period)?
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ii. Judgment will not issue if the action
is for the recovery of a sum of
money.
b. After levy
i. Execution sale can proceed.
NOTE: After a valid levy, the property is
already separated from the estate of the
deceased and is deemed in custodia
legis.
Q: Adam filed a case against Blake for P10M. During the
trial and judgment, Blake was still alive. Adam filed a
motion for execution of judgment, which was granted. The
sheriff went to Blake and all his properties were levied
upon. Subsequently, Blake died. Will the execution of
judgment proceed?
A: YES. Because the properties were already leviedapportioned.
Q: Using the same example, however, this time the
properties were not levied before the death of Blake. Can
Adam proceed with placing Blake’s properties on levy?
A: NO. Adam’s remedy is to move the case to the estateintestate court.
SECTION 8: ISSUANCE, FORM AND CONTENTS OF
A WRIT OF EXECUTION
Contents of writ of execution
The writ of execution shall issue in the name of the
Republic of the Philippines from the court which granted
the motion and shall state:
1.
2.
3.
4.
Name of the court which granted the motion;
Case number;
Title;
Dispositive portion of the judgment or order
subject of the execution; and it shall
5. Require the sheriff or other proper officer to whom
it is directed to enforce the writ according to its
terms.
NOTE: The writ of execution cannot modify or change the
dispositive portion. It has to be consistent, otherwise, the
writ of execution is void.
Q: Ariel filed a motion for the issuance of a writ of
execution. The court now issues an order granting the
issuance of the writ of execution. Is the order granting the
writ of execution the writ itself?
A: NO. It will be the writ of execution addressed to the
sheriff, directing him to execute the judgment. Execution
will depend on the judgment.
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Execution dependent on judgment
If the judgment is about:
1.
2.
3.
Money, governed by Section 9 (Execution for
Judgments for Money)
Specific act such as conveyance, delivery of deed
or specific acts vesting title, or unlawful detainer, the
execution is governed by Section 10 of Rule 39
(Execution of Judgments for Specific Act).
All others not covered by Section 9 and Section 10
will be governed by Section 11 (Execution of Special
Judgments).
NOTE: Under Section 8, it is clear that the writ of execution
must specifically state the amount of interest costs,
damages, rents, or profits due as of the date of the issuance
of the writ, aside from the principal obligation under the
judgment. However, the one going to compute such will be
the judgment obligor.
SECTION 9: EXECUTION FOR JUDGMENTS FOR
MONEY, HOW ENFORCED
How execution for judgments for money is enforced
If award is for payment of money:
1. Immediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits.
How to effect immediate payment on demand and
satisfaction by levy
Q: There is an execution of a money judgment, in an action
for collection for a sum of money, worth P10M. A writ of
execution was enforced against Alpha. The sheriff will
proceed to Alpha’s residence and inform him of the
execution. If Alpha pays the 10M, the sheriff shall deposit
such money to the clerk of court. The clerk of court will now
turn over the money to the judgment obligee. The excess if
any, will be returned back to the judgment obligor. What if
Alpha is not capable of paying the 10M pesos?
A: The sheriff should just execute on Alpha’s personal
property that are not exempt from execution. Here, Alpha
may identify which among his personal properties he
intend to reserve from execution. However, if the
remaining properties are still insufficient to cover the
liability, all of Alpha’s personal property will be subject to
execution.
The sheriff now will take the personal properties to the
court.
The court will conduct a public auction. However, while
the public auction has not been executed, Alpha may
replace the properties subject for auction or he may pay
the amount required in order to reacquire his personal
properties.
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If the personal properties are still insufficient, the sheriff
will resort to Alpha’s real properties. But again, the sheriff
shall ask the judgment obligor, Alpha, to identify which
real property he intends to reserve from execution. The
judgment obligor has the right to choose which among his
properties may be subject of execution.
Once there is a notice of levy annotated to the properties,
such properties will now be the subject of auction.
Garnishment v. Levy
GARNISHMENT
LEVY
DESCRIPTION
A court order directing Directed upon real property,
that money be seized to which is then segregated
satisfy a debt owed by a from the mass of properties
debtor to a plaintiff owned by the judgment
creditor.
obligor.
PURPOSE
The amount a debtor is The purpose of segregating
supposed to give to the is that those which are
judgment obligor is given subject to levy will now be
to the court.
sold in public auction.
Procedure for garnishment
1. Sheriff will serve a notice upon the person owing
such debts (garnishee) or having in his
possession or control such credits;
2. Garnishee shall make a written report to the court
within 5 days from service of the notice, stating
whether or not the judgment obligor has sufficient
funds or credits;
3. Garnished amount shall be delivered directly to
the judgment obligee within 10 days from service
of notice.
NOTE: Normally, writ of garnishments are served on
banks. The banks are supposed to report it to the court
and deliver the amount to the court within the period of 5
days.
Writ of garnishment does not violate the bank secrecy law
simply because this is part of the execution land process.
The purpose is not to determine whether there is an
account in that bank belonging to the judgment obligor but
rather making sure the judgment debt be satisfied (PCIB
v. CA, 193 SCRA 453).
In order that the trial court may validly acquire jurisdiction
to bind the person of the garnishee, it is not necessary
that summons be served upon him. The garnishee need
not be impleaded as a party to the case. All that is
necessary for the trial court to lawfully bind the person of
the garnishee or any person who has in his possession
credits belonging to the judgment obligor is service upon
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him of the writ of garnishment (Perla Compania v.
Ramolete, 203 SCRA 487 (1991)).
SECTION 10: EXECUTION OF JUDGMENTS FOR
SPECIFIC ACT
Conveyance, delivery of deeds, or other specific acts;
vesting title
When the party refuses to comply, the court can appoint
some other person to do the act at the expense of the
disobedient party, and the act done shall have the same
effect as if the required party performed it.
The court, by an order, may also divest title of any party in
real or personal property situated in the Philippines and vest
it in others, which shall have the same effect of a conveyance
in due form of law.
EXAMPLE: Alan sold a property to Lito. Alan received the
payment but does not want to execute the deed of absolute
sale for the transaction to materialize. Assuming that the
case is for reconveyance of property, Alan, upon receipt of
judgment, should execute the deed of reconveyance or the
deed of absolute sale. If there is continuous refusal on the
part of Alan to comply, Lito can go to the court and ask the
court to execute it.
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 (Rule 39, Section 10, RoC).
Delivery or restitution of real property
The officer shall demand from the judgment obligor and all
persons claiming rights under him to vacate peaceably within
3 working days, and restore possession of the property to the
judgment obligee.
If the party refuses to vacate the property, the remedy is not
to file a petition to cite the lessee in direct contempt because
the writ of execution is directed or addressed to the sheriff.
The remedy is to coordinate with each other and make sure
that the Sheriff will be able to get the assistance of
appropriate peace officers and employ such means as may
be reasonably necessary to retake possession (Moslem v.
Soriano, 124 SCRA 195 (1995)).
Q: Niki is a lessee in an unlawful detainer case. Joji, the
sheriff is now tasked to evict Niki. The sheriff 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. What if after 3 days, Joji came
back and Niki still refused to vacate the property?
A: The officer shall evict the person with the assistance,
if necessary, of the appropriate peace officers and
employing such means as reasonably and necessary to
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retake the possession and place the judgment obligee in
possession of the property.
Removal of improvements on property subject of
execution
There must be a special order by the court (Writ of
Demolition) issued:
1. Upon motion of the judgment obligee;
2. After due hearing; and
3. After the judgment obligor has failed to remove
the improvements within a reasonable time fixed
by the court.
Q: Peter, knowing that the property belongs to John,
constructed a bahay kubo. John sued Peter, with the
former winning the case. John now wants to construct a
mansion over his property. Can he order the demolition of
Peter’s bahay kubo?
A: NO. The judgment obligee, if he wants to demolish the
improvement introduced by the judgment obligor, must file
a motion in court to allow the sheriff to destroy the
improvements introduced by the judgment obligor. There
must be an order of demolition, which means that there
must be a motion filed and it must be granted. That is the
only time the sheriff can demolish such property.
Delivery of personal property
Q: In an unlawful detainer case, the judgment rendered
requires Barney to be evicted and for him to pay P1M by
way of arrears. How will the money judgment be
executed?
A: Execute the judgment as provided for in Section 9 of
Rule 39 (money, personal property, and real property).
This is an unlawful detainer case where the recovery of
possession is executed pursuant to Section 10 and the
money judgment is executed in compliance with Section
9.
SECTION 11: EXECUTION OF SPECIAL JUDGMENTS
Special judgment
One which requires the performance of any act, other
than the payment of money or the sale or delivery of real
or personal property, which a party must personally do
because his personal qualifications and circumstances
have been taken into consideration (Caluag v. Pecson,
GR No. L-1403, October 29, 1948).
EXAMPLE: In a petition for recognition of illegitimate
filiation, Tom is the father of Jerry. Despite judgment in
favor of Jerry, Tom consistently fails to provide for
support. In this case, if Jerry fails to recognize the
illegitimate child when he is already judicially required to
do so, the court can hold him in contempt.
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NOTE: Section 11 applies only to cases not covered by
Section 9 and Section 10.
SECTION 12: EFFECT OF LEVY ON EXECUTION AS
TO THIRD PERSONS
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title, and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
EXAMPLE: There is a judgment, and although it has not
attained finality, the court allowed discretionary execution.
The sheriff is required to serve the writ of execution on a
judgment obligor to compel such to pay judgment obligee
an amount of money.
However, if the judgment obligor does not have the
money and personal properties to comply, the sheriff now
will look into the judgment obligor’s real properties.
Judgment obligor owns a real property in Baguio. The writ
of execution will be brought to the Register of Deeds of
Baguio and the notice of levy will be annotated to the title
of that property. Once annotated, the notice of
requirement and publication shall have to be complied
with first before the property can be auctioned off.
During the auction sale, judgment obligee bought the
property. The rights that judgment obligee will acquire are
the same rights that the judgment obligor has on that
property as of the time of the levy.
Subject to existing rights and encumbrances
If after levy but before annotation of such, the property was
mortgaged by the judgment obligee and the real estate
mortgage was already annotated, judgment obligee has an
inferior lien because the real estate mortgage was annotated
first.
NOTE: The right cannot be more than what the judgment obligor
has.
SECTION 13: PROPERTY EXEMPT FROM
EXECUTION
Raised at earliest opportunity
If a property is exempt from execution, such fact must be raised
at the earliest opportunity, which is when the property has
already been levied upon or taken away from execution. It
cannot be undone if the property has already been sold.
SECTION 14: RETURN OF WRIT OF EXECUTION
The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full.
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If the judgment cannot be satisfied in full within 30 days
after his receipt of the writ, the officer shall report to the
court and state the reason therefor. Such writ shall
continue in effect during the period within which the
judgment may be enforced by motion.
The officer shall make a report to the court every 30 days
on the proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the
proceedings taken, and shall be filed with the court and
copies thereof promptly furnished the parties.
NOTE: In all cases, written notice of the sale shall
be given to the judgment obligor, at least three (3)
days before the sale, except in case of perishable
property.
Purpose of publication and notice
Q: Why is publication needed?
A: To ensure participation of a lot of people in the auction so the
property will fetch a higher price.
Q: Why is judgment obligor given notice?
SECTION 15: NOTICE OF SALE OF PROPERTY ON
EXECUTION
Notice required
Written notice must be given to the judgment obligor
before the actual sale of the property. The judgment
obligor will still be protected by the law; even if the
property has been levied upon, there must still be a
publication indicating when, where, and what time will the
public auction be conducted.
Before the sale of property on execution, notice must be
given as follows, in case of:
1. Perishable property
a. Posting written notice of time and place
of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal/city hall, post office and public
market where the sale is to take place.
NOTE: No period for notice; for such time
as may be reasonable. Considering the
character and condition of the property
(Rule 39, Section 15(a), RoC). Notice
shall be given at any time before the sale.
2. Other personal property
a. Posting a similar notice in three (3) public
places for not less than five (5) days.
3. Real property
a. Posting for twenty (20) days in three (3)
public areas a similar notice particularly
describing the property and where to be
sold.
4. If assessed value of real property exceeds
P50,000
a. Publishing a copy of the notice once a
week for two (2) consecutive weeks in
one newspaper, selected by raffle, having
general circulation.
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A: Notice is an indispensable requirement. In all instances
notice is given to the judgment obligor and its purpose is to give
the losing party time to satisfy the judgment debt prior to the sale
of the property.
Noncompliance with notice
Q: What will happen if there is no notice?
A: Auction is void. Judgment obligor can ask the court to stop
the auction sale. If auction proceeded without the notice and
there is already payment, judgment obligor can file an action in
court to have it annulled.
SECTION 16: PROCEEDINGS WHERE PROPERTY
CLAIMED BY THIRD PERSON
It is only the property of the judgment-obligor that should be
auctioned, be levied upon, or be garnished, in order to satisfy
the judgment debt. The properties of a third person, a
stranger to the suit, cannot be used in order to pay the
judgment obligor’s liability.
Remedies of a third-party claimant
1.
2.
3.
Third-party affidavit (terceria)
Posting bond
Filing separate action
NOTE: Remedies are cumulative and may be resorted to by
the third-party claimant independently of or separately from
the others (Sps. Sy v. Discaya, GR No. 86301, January 23,
1990).
Third-party affidavit (terceria)
Prepare a third-party affidavit stating the basis of claim or
right of title and serve the same upon the officer making the
levy. The claim of the third-party must be substantiated by
attaching documents as proof of right of ownership and
possession to show the sheriff that the property is not owned
by the judgment obligor.
Posting a bond
The sheriff is not bound to keep the property, unless the
judgment obligee, on demand of the officer, will post a bond,
approved by the court, to indemnify the third party or the
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CIVIL PROCEDURE REVIEWER
stranger, in the event, the third party will be able to prove that
property is his, and he suffered damages.
The third-party claimant can go after the bond within a
period of one hundred twenty (120) days from the date of
filing of the bond. No claim for damages for taking or
keeping of the property may be enforced against the bond
unless the action is filed within the 120-day period.
If the sheriff proceeded with the levy without the bond
being posted by the judgment obligee, then the sheriff
shall be personally liable.
levied upon to satisfy the
debt is conjugal, the other
spouse’s remedy to file an
opposition or a motion in
the same case because
he/she is not considered a
stranger.
SECTION 17: PENALTY FOR SELLING WITHOUT
NOTICE, OR REMOVING OR DEFACING
Separate action
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.
Q: Erlinda was convicted of slander. A motion for
execution was filed to execute the her civil liability. The
property levied upon was the conjugal property of Erlinda
and her husband. The husband filed a separate action to
stop execution. Was it the correct remedy?
A: YES. Conjugal property cannot be held liable for the
personal obligation contracted by one spouse, unless
some advantage or benefit is shown to have accrued to
the conjugal partnership. By no stretch of imagination can
it be concluded that the civil obligation arising from the
crime of slander committed by Erlinda redounded to the
benefit of the conjugal partnership (Buado v. Court of
Appeals, GR No. 145222, April 24, 2009).
Q: Mariano is Esther’s supplier. Esther sued Mariano for
damages. Mariano filed an answer and won on her
counterclaim. Mariano executed the judgment pending
appeal. The property levied upon was the conjugal
property of Esther and her husband. When such was
about to be sold in public auction, the husband executed
a separate action to put a stop to it. Mariano opposed,
saying that the husband was not a stranger to the case.
Is Mariano correct?
A: YES. The liability arose as part of Esther’s profession.
Therefore, since the business is liable, the conjugal
property can be held liable. The remedy of the husband
is to file a motion or opposition in the same case (Mariano
v. Court of Appeals, GR No. 51283, June 7, 1989).
Buado and Mariano Doctrines Distinguished
BUADO
If the liability is personal
to one spouse only, which
means it is not conjugal in
nature and the property that
was levied upon is conjugal,
the
other
spouse
is
considered a stranger, and
he/she has the right to
institute a separate action
in order to protect his or her
interest in the said conjugal
property because he/she is
considered a stranger to the
case.
MARIANO
If the liability is conjugal
or community in nature
and the property that was
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Persons liable
The following are liable for actual and punitive damages:
1.
2.
An officer selling without notice prescribed by Section
15; and
A person willfully removing or defacing the notice
posted, if done before the sale, or before the
satisfaction of judgment if satisfied before the sale
NOTE: In either case, they are liable to pay punitive damages in
the amount of P5,000 to any person injured, in addition to actual
damages.
SECTION 18: NO SALE IF JUDGMENT AND COSTS
PAID
The judgment obligor may prevent the sale of property on
execution by paying the amount required by execution and the
costs that have been incurred therein.
If the judgment obligor will be able to pay the judgment debt and
other costs incurred before the auction sale, the property will not
be sold.
SECTION 19: HOW PROPERTY SOLD ON
EXECUTION; WHO MAY DIRECT MANNER AND
ORDER OF SALE
Property to be sold
The property to be sold will only be those that will be sufficient
to pay for the judgment debt and all the costs. The other
properties that were levied upon will no longer be sold. And if
there is excess, then it will be returned to the judgment obligor.
Who cannot participate in public auction?
1.
2.
3.
Judgment obligor, because the property is his;
Sheriff, because that would be a conflict in interest;
Officers of the court .
Q. RTC Judge of Quezon City decided a case, and issued
a writ of execution and it was implemented. The property
of the judgment obligor in the case was levied upon and
now it is being sold in public auction. RTC Judge of Makati
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CIVIL PROCEDURE REVIEWER
City, the best friend of the RTC Judge of Quezon City,
participated in the public auction sale and bought the
property. Is the sale valid, void, voidable, or
unenforceable?
When the purchaser is the judgment obligee, and no thirdparty claim has been filed, he need not pay the amount of
the bid if it does not exceed the amount of his judgment.
If it does, he shall pay only the excess.
A. VOID. RTC Judge of Makati is among those prohibited
under Article 1491 of the Civil Code, which provides:
SECTION 22: JUDGMENT OBLIGEE AS PURCHASER
“The following persons cannot acquire by purchase, even
at a public or judicial auction, either in person or through
the mediation of another:
xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of
justice, the property and rights in litigation or levied
upon an execution before the court within whose
jurisdiction or territory they exercise their
respective functions; this prohibition includes the act
of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be
the object of any litigation in which they may take part
by virtue of their profession[.]
By written consent of the judgment obligor and obligee, or
their duly authorized representatives, the officer may adjourn
the sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from day
to day if it becomes necessary to do so for lack of time to
complete the sale on the day fixed in the notice or the day to
which it was adjourned.
SECTION 23: CONVEYANCE TO PURCHASER OF
PERSONAL PROPERTY CAPABLE OF MANUAL
DELIVERY
Manual delivery
When the purchaser of any personal property capable of
manual delivery pays the purchase price:
1.
2.
Remedy in case of irregular sale
The officer making the sale must deliver the property
to the purchaser;
If desired, execute and deliver to him a certificate of
sale.
There is an irregular sale if there is no notice or the
purchaser in the public auction is prohibited to participate
under Article 1491 of the Civil Code.
NOTE: There is no need for certificate of sale. As provided
in this section, execution of certificate of sale is only if
desired.
The remedy of the judgment obligor is to file, in the same
case, a motion to vacate or set aside the sale.
Effect
SECTION 20: REFUSAL OF PURCHASER TO PAY
If the purchaser in the public auction fails to pay, he will
be liable to pay for damages.
Computing damages
The sale conveys to the purchasers all the rights which the
judgment obligor had in such property as of the date of the
levy on execution or preliminary attachment.
Q: B bought a pair of 24-karat diamond earrings. However,
she was not able to pay for it because it was too expensive.
Hence, the earrings were auctioned in a public sale. Is there
a need for an execution of a Certificate of Sale?
If the purchaser is unable to pay for his purchase, a
second public auction will be held. The amount of
damages is computed by getting the difference between
the amount that would have been realized and the total
amount for which the property was sold in the second
auction.
A: NO. What has to be done is to just deliver the earrings
because it is capable of manual delivery.
EXAMPLE: X bid P10M but did not have enough money
to pay. During the second public auction, in which X is not
allowed to participate in, the property was sold for only
P9M. X will have to pay for the P1M difference/loss. If X
is still unable to pay the difference/loss, he can be sued in
a separate action.
Incapable of manual delivery
SECTION 21: JUDGMENT OBLIGEE AS PURCHASER
Certificate of sale
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SECTION 24: CONVEYANCE TO PURCHASSER OF
PERSONAL PROPERTY NOT CAPABLE OF MANUAL
DELIVERY
When the purchaser of any personal property not capable
of manual delivery pays the purchase price, the officer
making the sale must execute and deliver to the
purchaser a certificate of sale.
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CIVIL PROCEDURE REVIEWER
Such certificate conveys to the purchaser all the rights
which the judgment obligor had in such property as of the
date of the levy on execution or preliminary attachment.
Q: B bought a car. She was not able to pay for it. Hence,
the car was auctioned. Is there a need for an execution of
a Certificate of Sale?
A: YES. A car cannot be carried. Therefore, there is a
need to issue a certificate of sale.
SECTION 25: CONVEYANCE OF REAL PROPERTY;
CERTIFICATE THEREOF GIVEN TO PURCHASER
AND FILED WITH REGISTRY OF DEEDS
Sale of real property
Upon a sale of real property, the officer must give to the
purchaser a certificate of sale containing:
1.
2.
3.
4.
A particular description of the real property sold;
The price paid for each distinct lot or parcel;
The whole price paid by him;
A statement that the right of redemption expires
one (1) year from the date of the registration of
the certificate of sale.
by the sheriff must make an express mention of the
existence of such third-party claim.
SECTION 27: WHO MAY REDEEM REAL PROPERTY
SO SOLD
Redemption
Redemption means “to buy back.” In other words, a real
property was sold at a public auction. But the ownership
cannot be consolidated because the law gives the judgment
obligor, if he is the owner of the property, and a
redemptioner, a period within which to redeem the property.
NOTE: Only real properties can be the subject of
redemption.
How much will be paid?
It is not the judgment debt that will be paid. Rather, what shall
be paid are the following:
1.
The purchase price; and
2.
All the expenses incurred when the property was
sold in the public auction, which include:
a. Sheriff’s fee
b. Cost of publication
c. Annotation fee of the Certificate of Sale at
the back of the title
Such certificate must be registered in the registry of deeds
of the place where the property is situated.
Execution/issuance of a certificate of sale
If it is a property, there is really a need to execute a
certificate of sale. Because such certificate, once issued,
has to be brought and registered to the Register of Deeds.
The certificate of sale has to be annotated at the back of
the title.
Persons who can redeem
1.
2.
3.
Judgment obligor
Judgment obligor’s successor-in-interest in the
whole or any part of the property
Creditor who has a subsequent lien on the property
(redemptioner)
Q: Why does it have to be annotated?
Successors-in-interest
A: Because the redemption period will start to run upon
the annotation of the certificate of sale at the back of the
title.
A successor-in-interest is
1.
2.
Right of redemption
There is only a redemption period if the property sold
is a real property. There is no right of redemption if the
property sold is a personal property. The basis for such is
Section 27 of Rule 39.
SECTION 26: CERTIFICATE OF SALE WHERE
PROPERTY CLAIMED BY THIRD PERSON
When a property sold by virtue of a writ of execution has
been claimed by a third party, regardless if it is a personal
property or a real property, the certificate of sale issued
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3.
One to whom the debtor has transferred his interest;
One to whom the debtor has conveyed his interest
in the property for purposes of redemption; or
One who succeeds in the interest of the judgment
obligor because of law (Palicte v. Ramolete, 154
SCRA 132 (1987)).
Q: Palicte, a successor-in-interest, validly redeemed the
properties. She filed a motion to transfer the properties in her
name. Should it be granted or denied?
A: DENIED. Even if a successor-in-interest validly
redeemed the properties, the motion to transfer the
properties in her name should be denied. Because to
allow such transfer of title would amount to the distribution
of the estate (Palicte v. Ramolete, 154 SCRA 132
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CIVIL PROCEDURE REVIEWER
(1987)). In this case, the court held that other heirs are
given six (6) months period to join as co-redemptioners in
the redemption made by Palicte before the motion to
transfer titles to her name may be granted. The property
should be distributed to all the heirs.
Creditor with subsequent lien (redemptioner)
A creditor having lien by virtue of an attachment, judgment
or mortgage on the property sold, or on some part thereof,
subsequent to the lien under which the property was sold.
Such redeeming creditor is termed a redemptioner.
Q: Why is there a subsequent lien?
A: It could arise because of:
1. A writ of preliminary attachment;
2. Judgment was made on another property in
another case; or
3. Mortgage of such property (Palicte v.
Ramolete, 154 SCRA 132 (1987)).
ILLUSTRATION: MC mortgaged her property to Pretzel.
Then, MC borrowed money from Carmina (no mortgage).
MC subsequently mortgaged the property to Alvero.
The first debt to become due is the one to Carmina. MC
failed to pay upon demand so Carmina filed a case
against her. The property was levied. While the case was
pending, MC borrowed money from Eve. The property
was sold at a public auction.
The sale was annotated on June 1, 2019. The judgment
obligor and the redemptioner have a period of one (1)
year from such date to redeem.
ILLUSTRATION: Xander’s title is clean. Xander borrowed
P15M from Yandu. Xander did not pay. Yandu sued Xander
and his insurance company. Xander lost the case. The writ
of execution was issued and Xander’s property was levied
upon. After the notices, Xander’s property was sold in public
auction. The subject property was bought by Yandu because
she was the only participant in the public auction. The
certificate of sale was annotated on the back of the title on
June 1, 2020.
Q: Who can redeem the property?
1. Xander only;
2. Xander and the insurance company who Yandu
likewise sued; or
3. The insurance company only.
A: Xander only. The insurance company is not Xander’s
successor-in-interest.
Q: Is the insurance company, as a surety, a redemptioner?
A: NO. A redemptioner is a creditor having a subsequent lien
to the property. In the instant case, the surety company is not
somebody who has a subsequent lien to the property. It does
not have a right to the property. The insurance company’s
name was not even written in the title. The property was not
mortgaged prior to the case. The property was not owned by
the insurance company. Therefore, it is not technically a
creditor.
NOTE: In other words, to be a redemptioner, the lien must
be other than and subsequent to the judgment under which
the property was sold. In this case, the lien which the
insurance company acquires if he will pay the judgment debt
is based on the same judgment. Hence, the surety company
is not a redemptioner.
Redemptioner’s right to redeem
Q: Who can redeem?
A: The one who can redeem is MC, because she is the
judgment obligor. If MC dies, her successor-in-interests
may redeem the property.
The redemptioners are given the right to redeem to
protect their interest in the said property of the judgment
obligor. Being subsequent lien holders, if the judgment
obligor does not redeem, the purchasers get the property
free from all liens and encumbrances.
Q: Who is the redemptioner/junior encumbrancer?
Right to redeem is a real property; levy of right
A: The redemptioner is Eve. It is neither Pretzel nor
Alvero. Pretzel and Alvero’s encumbrance is senior than
(i.e., annotated prior to) the notice of levy. To be a junior
encumbrancer, the encumbrance must occur after the
notice of levy. Therefore, it is Eve who can redeem.
NOTE: It is the judgment obligor and the junior
encumbrancer/redemptioner who can redeem the
property. As for the senior encumbrancers (Pretzel and
Alvero), there is no need for them to redeem. They are
respected as they had the encumbrance first. So even if
the property will be sold in the auction, the senior
encumbrance/mortgage will be carried over, even if the
purchaser consolidates the property.
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GR: The right to redeem cannot be levied upon by the
judgment obligee who bought the property during public
auction. It would render the right of the judgment obligor
illusory.
XPN: But the right of redemption of the judgment obligor
can be levied upon by another judgment obligee in a case
separate and distinct from the case where he has that
right to redeem. The right of the judgment obligee in a
separate case is deemed a property right.
EXAMPLE: The property of Pedro (judgment obligor) was
levied and sold to Juan (first judgment obligee). Pedro has
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CIVIL PROCEDURE REVIEWER
the right to redeem. Juan cannot levy such right to
redeem.
Pedro has a separate case with Maria (second judgment
obligee). Maria can levy and sell Pedro’s right to redeem
the property from the case of Pedro v. Juan.
Q: What is the difference between the two cases?
acquires any lien other than that upon which the redemption
was made, notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such notice be
not filed, the property may be redeemed without paying such
assessments, taxes, or liens.
Redemption price
1.
Judgment Obligor or the First Redemptioner
a. Purchase price;
b. One percent (1%) per month interest up to the
time of redemption;
c. Amount of any assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate; and
d. If the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which purchase was
made, the amount of such other lien, with
interest.
2.
Subsequent redemptioners
a. Amount paid on the last redemption;
b. Two percent (2%) interest thereon;
c. Amounts of any assessments or taxes which
the last previous redemptioner paid after the
redemption thereon with interest; and
d. Amount of any liens held by said last
redemptioner prior to his own, with interest.
A: In the case of Pedro v. Juan, it is Juan who was given
the right to redeem. It would be illusory if Juan’s right will
be taken by the same person (Pedro) who sold his
property. On the other hand, in Maria v. Juan, Maria can
levy on Juan’s right to redeem because such right is
deemed a property right. Maria may sell it and Juan can
still redeem such property right.
SECTION 28: TIME AND MANNER OF, AND
AMOUNTS PAYABLE ON, SUCCESSIVE
REDEMPTIONS; NOTICE TO BE GIVEN AND FILED
When redemption can be made
REDEMPTION MADE
BY
Judgment Obligor or
First Redemptioner
All Subsequent
Redemptioners
TIME
Within one (1) year from the
date of the registration of
the certificate sale
Within 60 days from the last
redemption, provided that
the judgment obligor has not
exercised his right of
redemption
NOTE: Even if the redemptioner redeemed it, the
judgment obligor still has a period of one (1) year within
which to redeem from the issuance of the certificate of
sale.
EXAMPLE: X and Y are redemptioners. X redeemed first.
As such, Y has a period of 60 days within which to
redeem. The computation of the 60-day period shall start
from the time of the registration of the previous
redemption on the title. But if the judgment obligor
redeems it before Y, the redemption stops and property
is restored to him.
Q: If the levy or judgment on that property was not
registered, will the period for redemption start to run?
A: NO, it will not start to run. The judgment obligee, upon
winning the case, must cooperate with the sheriff and
cause the registration so as to start the running of the
period for redemption.
NOTE: Written notice of any redemption must be given to
the officer who made the sale and a duplicate filed with
the registry of deeds of the place, and if any assessments
or taxes are paid by the redemptioner or if he has or
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A check may be used for the exercise of the right of
redemption, but it is only when the proceeds have been
received that the redemptioner can be considered paid. The
tender of a check is sufficient to compel redemption but is
not in itself a payment that relieves the redemptioner from his
liability to pay the redemption price (Fortunato v. Court of
Appeals, 196 SCRA 269 (1991)).
SECTION 29: EFFECT OF REDEMPTION BY
JUDGMENT OBLIGOR, AND A CERTIFICATE TO BE
DELIVERED AND RECORDED THEREUPON; TO
WHOM PAYMENTS ON REDEMPTION MADE
Certificate of redemption
The person to whom redemption payment is made must
execute and deliver to the judgment obligor a notarized
certificate of redemption, which is filed, registered, and
annotated with the Register of Deeds.
Suspension of redemption period
GR: Period of redemption cannot be suspended, as one
can file a motion or a separate action if there are
irregularities with regard to redemption.
XPN: The redemption period is strictly construed unless
when the parties agreed to the contrary. Such agreement
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CIVIL PROCEDURE REVIEWER
is deemed as a conventional redemption and such is
not based on the Rules of Court but on the agreement
between the two parties.
Extension of redemption period
The court may award an additional period to redeem
under special circumstances such as when the period
has been interrupted by an action by the judgment obligee
to destroy that right of redemption. However, the right of
redemption cannot be extended on the ground of financial
hardship of the judgment obligor.
NOTE: The fact that the judgment obligee filed a separate
case to annul foreclosure proceedings and the
subsequent auction sale will not automatically suspend
the right of redemption.
SECTION 30: PROOF REQUIRED OF
REDEMPTIONER
NOTE: This may be with or without notice.
Q: The property of Alyssa was sold in a public auction. She
is unable to redeem in the period required, so she turned it
into a bahay aliwan. What is the remedy of the purchaser?
A: Purchaser should ask the court to issue an order
restraining Alyssa to stop acts inimical to the property he
bought.
Acts not considered waste
It is not waste for a person in possession of the property at
the time of sale, or entitled to possession afterwards, to:
1.
2.
3.
Proof of redemption
A redemptioner must produce to the officer or person
from whom he seeks to redeem, and serve with his notice
to the officer:
1. A copy of the judgment or final order under which
he claims the right to redeem certified by the clerk
of court wherein the judgment or final order is
entered; or
2. If he redeems upon a mortgage or other lien, a
memorandum of the record thereof certified by
the register of deeds; or
3. An original or certified copy of any assignment
necessary to establish his claim; or
4. An affidavit executed by him or his agent showing
the amount then actually due on the lien.
NOTE: If the redemptioner refuses to submit documents
to show the basis for his redemption, the other party can
validly refuse redemption. On the other hand, when the
original owner wants to redeem, there is no need for him
to prove his right as a judgment obligor.
SECTION 31: MANNER OF USING PREMISES
PENDING REDEMPTION; WASTE RESTRAINED
Restraint on commission of waste
Until the expiration of the time allowed for redemption, the
court may restrain the commission of waste on the
property by injunction (Rule 58) on the application of
either the:
1. Judgment obligee; or
2. Highest bidder
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Continue to use the property in the same manner in
which it was previously used;
Use the property in the ordinary course of
husbandry; or
Make the necessary repairs to buildings while he
occupies the property.
NOTE: During the one (1) year period to redeem, the owner
of the property is the judgment obligor. This is because the
purchaser cannot yet consolidate the title.
SECTION 32: RENTS, EARNINGS AND INCOME OF
PROPERTY PENDING REDEMPTION
Purchaser or redemptioner shall not be entitled to the
following when the property is in the possession of a tenant:
1.
2.
3.
4.
Rents;
Earnings;
Income; or
Value of the use and occupation
NOTE: All of such shall belong to the judgment obligor until
the expiration of his period of redemption.
SECTION 33: DEED AND POSSESSION TO BE
GIVEN AT EXPIRATION OF REDEMPTION PERIOD;
BY WHOM EXECUTED OR GIVEN
Effect if no redemption is made
1. If no redemption is made within one (1) year from
the date of the registration of the certificate of sale
a. Purchaser is entitled to a conveyance
and possession of the property; or
2. If so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given,
a. Last redemptioner is entitled to the
conveyance and possession of the
property
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The purchaser may recover the purchase price when:
Consolidation of purchaser’s ownership
Process of consolidating ownership:
1.
2.
3.
4.
5.
Affidavit stating there was no redemption;
Ask sheriff to issue deed of absolute sale;
Go to Registry of Deeds to show that purchaser is now
the owner of the property;
Issuance of new title in purchaser’s name;
Issuance of writ of possession in a non-litigous motion
(Rule 15), in relation to Rule 39, a new title is already
under the name of the purchaser, he is entitled as a
matter of right to the possession of the property
2. He is evicted due to
a. Irregularities
in
the
proceedings
concerning the sale;
b. Judgment has been reversed or set
aside;
c. Property sold was exempt from
execution; or
d. Third person has vindicated his claim to
the property
NOTE: Issuance of the writ is a non-litigous motion
because such is ministerial by the court; need only to
file an ex parte motion.
Remedy of purchaser
XPN: Third party is claiming ownership of the property;
in this case, writ of possession is not ministerial.
If the sale was not effective under the circumstances in
this section, the purchaser may file:
Purchaser’s rights retroact to the date of levy
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights,
title, interest and claim of the judgment obligor to the property as
of the time of the levy.
Documents executed by the sheriff
There are two documents which the sheriff executes in case of
real property:
1.
2.
1. He (or his successors-in interest) fails to recover
the possession of the property; or
Certificate of Sale
Deed of Conveyance
Certificate of Sale v. Deed of Conveyance
CERTIFICATE OF SALE
DEED OF CONVEYANCE
WHEN ISSUED
Issued after the auction
sale; once annotated, starts Executed after one (1) year
the one (1) year redemption if no redemption made
period
TRANSFER OF RIGHTS
Operates to transfer to the
purchaser whatever rights
Does not transfer any rights the judgment obligor has on
the property as of the time
of the levy.
SECTION 34: RECOVERY PRICE IF SALE NOT
EFFECTIVE; REVIVAL OF JUDGMENT
This section contemplates a situation where the purchases
is not the judgment creditor and is also applicable in
execution pending appeal.
Recovery of purchase price
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1. Motion in the same action (motion to recover
purchase price); or
2. Separate action to recover from the judgment
obligee the price paid; or
3. Motion for the revival of judgment.
Differences between Revival of Judgment in Section
6 and in Section 34, Rule 39
RULE 39, Sec. 6
RULE 39, Sec. 34
HOW COMMENCED
An independent civil action It is commenced by filing a
commenced by filing a
motion before the court
complaint for revival of
which
rendered
the
judgment
judgment sought to be
revived
WHO MAY AVAIL
The judgment obligee, his The highest bidder may
assignee,
or
his avail of this remedy
successors-in-interest may
avail of this remedy
PURPOSE
The purpose is to revive a
The purpose is for the
dormant judgment for it to
highest bidder to recover
be again executed by mere from the judgment obligor
motion
because he was not able to
acquire the property he
purchased
SECTION 35: RIGHT TO CONTRIBUTION OR
REIMBURSEMENT
When property liable to an execution against several
persons is sold thereon, and more than a due proportion
of the judgment is satisfied out of the proceeds of the sale
of the property of one of them, or one of them pays,
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CIVIL PROCEDURE REVIEWER
without a sale, more than his proportion, he may compel
a contribution from the others.
When a judgment is upon an obligation of one of them, as
security for another, and the surety pays the amount, or
any part thereof, either by sale of his property or before
sale, he may compel repayment from the principal.
SECTION 36: EXAMINATION OF JUDGMENT
OBLIGOR WHEN JUDGMENT SATISFIED
Examination of judgment obligor
The judgment obligee is entitled to an order from the court
which rendered the judgment, requiring the judgment
obligor to appear and be examined concerning his
property and income before the court or a commissioner
appointed by the court.
XPN: The judgment obligor cannot be required to appear
before a court or commissioner outside the province or
city in which such obligor resides or is found.
Q: Sheriff went to the house of the judgment obligor to
satisfy a judgment on money claims. Upon reaching the
house, there is no property available to be levied so
execution was returned unserved. What can the judgment
obligee do?
A: The judgment obligee may cause the examination of:
1. Judgment obligor’s property
2. Judgment obligor’s income
3. Judgment obligor’s obligor (Section 37)
NOTE: If the court finds that the earnings of the judgment
obligor are more than sufficient to satisfy his family needs,
the court may order payment of judgment debt by
installments. It is possible that one has no property but
has sufficient income.
SECTION 37: EXAMINATION OF OBLIGOR OF
JUDGMENT OBLIGOR
Examination of obligor of judgment obligor
A person, corporation, or other juridical entity, indebted to the
judgment obligor may be required to appear before the court
or a commissioner appointed by it, at a time and place within
the province or city where such debtor resides or is found,
and be examined concerning the same.
Q: If Christian denied the debt, what is the remedy?
A: The remedy will be Section 43 of Rule 39. The court
does not have jurisdiction to determine whether or not the
debt exists (NAPOCOR v. Gonong, 177 SCRA 366 (1989)).
SECTION 38: ENFORCEMENT OF ATTENDANCE
AND CONDUCT OF EXAMINATION
Order or subpoena
A party or other person may be compelled, by an order or
subpoena, to attend before the court or commissioner to
testify, as provided in Sections 36 and 37 of Rule 39.
Failure to obey
The party/person may be punished for contempt as in other
cases.
SECTION 39: OBLIGOR MAY PAY EXECUTION
AGAINST OBLIGEE
After a writ of execution against property has been issued, a
person indebted to the judgment obligor may:
1.
2.
Pay to the sheriff holding the writ of execution the
amount of his debt or so much thereof as may be
necessary to satisfy the judgment;
In the manner of payment as prescribed in Section
9 of Rule 39.
The sheriff’s receipt shall be sufficient to discharge for the
amount so paid or directed to be credited by the judgment
obligee on the execution.
SECTION 40: ORDER FOR APPLICATION OF
PROPERTY AND INCOME TO SATISFACTION OF
JUDGMENT
Application of property or money
The court may order any property of the judgment obligor, or
money due him, not exempt from execution, in the hands of
either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the
judgment, subject to any prior rights over such property.
Payment in installments
NOTE: The service of the order shall bind all credits due to
the judgment obligor and all money and property of the
judgment obligor in their possession
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support
of his family, the court may order that he pay the judgment in
fixed monthly installments.
EXAMPLE: Jet is the judgment obligor and Christian is her
debtor. Christian may be examined as regards the
collectibles of Jet. If Christian acknowledges the debt, the
court can order him to pay directly to the judgment obligee.
It is essential that he acknowledges the debt.
NOTE: Upon his failure to pay any such installment when
due without good excuse, may punish him for indirect
contempt.
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SECTION 41: APPOINTMENT OF RECEIVER
Purpose of a receiver
To make sure that the property of the judgment obligor will
not be put to waste.
EXAMPLE: Judgment obligee levied the property of
judgment obligor. The latter, knowing that the property
was levied, used it for indecent activities. In this case
judgment obligee could ask the court to appoint a receiver
to enjoin the judgment obligee from putting the property
to waste.
If upon determination that a debt exists, the judgment
obligor’s debtor still refuses to hand over the property, he
can be cited in indirect contempt.
NOTE: When exercising the remedies under Sections 36
to 43 (remedies of judgment obligee in aid of execution) It
needs to be done within the five (5) year period, as the
judgment may only be executed by way of motion within
five (5) years from the date of entry.
SECTION 44: ENTRY OF SATISFACTION OF
JUDGMENT BY CLERK OF COURT
Satisfaction of judgment
SECTION 42: SALE OF ASCERTAINABLE INTEREST
OF JUDGMENT OBLIGOR IN REAL ESTATE
‘
If it appears that the judgment obligor has an interest in
real estate in the place in which proceedings are had, as
mortgagor or mortgagee or otherwise, and his interest
therein can be ascertained without controversy the
receiver may be ordered to sell and convey such real
estate or the interest of the obligor.
Such sale shall be conducted in all respects in the same
manner as is provided for the sale of real state upon
execution, and the proceedings thereon shall be
approved by the court before the execution of the deed.
EXAMPLE: The judgment obligor has no property.
However, when asked by the court, he revealed he has a
property belonging to X mortgaged in his favor. In this
case, the mortgage is the judgment obligor’s property
right which the court can order its sale to satisfy the
judgment against him.
SECTION 43: PROCEEDINGS WHEN
INDEBTEDNESS DENIED OR ANOTHER PERSON
CLAIMS THE PROPERTY
Action against judgment obligor’s debtor
The judgment obligee needs to ask the court to institute
an action against the debtor of the judgment obligor,
who denies to give the debt.
There is no privity between the judgment obligee and the
debtor of the judgment obligor. If there is no court
authority, the judgment obligee has no cause of action
which would result to the dismissal of the complaint. The
purpose is to determine whether there is debt that exists
in favor of the judgment obligor and his debtor.
NOTE: Docket fees should be shouldered by the
judgment obligee. But if he wins, he can recover such
through prayer.
Contempt
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Satisfaction of judgment means compliance with the
fulfillment of the mandate of the decision.
Entry of satisfaction of judgment
Satisfaction of a judgment shall be entered by the clerk of
court in the court docket, and in the execution book, upon:
1.
Return of a writ of execution showing the full
satisfaction of the judgment; or
2.
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
3.
Endorsement of such admission by the judgment
obligee or his counsel, on the face of the record of
the judgment.
Who may compel satisfaction of judgment?
1.
2.
Judgment obligee, by means of execution;
Judgment obligor, by means of voluntary payment
SECTION 45: ENTRY OF SATISFACTION OF
JUDGMENT WITH OR WITHOUT ADMISSION
Effect of satisfaction of judgment
When the judgment obligor satisfies the judgment, he/she
is estopped from questioning the validity of the judgment.
In effect, by satisfying the judgment, whether partially or
fully, he/she has already recognized the propriety of the
judgment and therefore he/she can no longer appeal the
said judgment.
Judgment satisfied by means other than execution
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
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CIVIL PROCEDURE REVIEWER
and acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding section.
Refusal of judgment obligee to execute admission of
satisfaction
After notice and upon motion, the court may order:
1. Either the judgment obligee or his counsel to do
so; or
2. The entry of satisfaction to be made without such
admission.
Necessity of satisfaction of judgment
Satisfaction of judgment is necessary so that no more
execution may be done.
SECTION 46: WHEN PRINCIPAL BOUND BY
JUDGMENT AGAINST SURETY
When a judgment is rendered against the surety, the
principal debtor is also bound by such from the time:
1. He has notice of the action or proceeding; and
2. Opportunity at the surety's request to join in the
defense.
SECTION 47: EFFECT OF JUDGMENTS OR FINAL
ORDERS
matters in issue in the first suit (Oropeza Marketing
Corporation v. Allied Banking Corporation, G.R. No.
129788, December 3, 2002).
The rationale for the rule is that “public policy requires that
controversies must be settled with finality at a given point in
time.” Res judicata is founded on the principle that parties
ought not to be permitted to litigate the same issue more than
once. Hence, when a right or fact has been judicially tried
and established by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of the
court — so long as it remains unreversed — is conclusive
upon the parties and those in privity with them in law or
estate.
Requisites of res judicata
The requisites of res judicata are as follows:
1.
There must be final judgment;
NOTE: There is no res judicata if the matter is an
interlocutory order.
2.
3.
4.
The court has jurisdiction over the subject matter
and over the parties;
There is judgment on the merits; and
Identity of the parties, subject matter, and cause of
action.
NOTE: If judgment is not yet final and executory, it is not res
judicata but, litis pendencia.
Effect of judgments or final orders
Judgment on merits
This refers to judgments which are considered as
conclusive, either
1. Against the whole world/action in rem;
2. Between parties to the action or proceeding
only/action in personam; or
3. 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.
A judgment is “on the merits” when it amounts to a legal
declaration of the respective rights and duties of the parties,
based upon the disclosed facts. “Merits” has been as a
matter of substance in law, as distinguished from a matter of
form refers to the real or substantial grounds of action or
defense, as contrasted with some technical or collateral
matter raised in the course of the suit. There could be a
judgment on the merits even if there is no trial.
Doctrine of res judicata
There is identity of parties when:
Res judicata literally means a matter adjudged; a thing
judicially acted upon or decided; a thing or matter settled
by judgment. Res judicata lays the rule that an existing
final judgment or decree rendered on the merits, and
without fraud or collusion, by a court of competent
jurisdiction, upon any matter within its jurisdiction, is
conclusive of the rights of the parties or their privies, in all
other actions or suits in the same or any other judicial
tribunal of concurrent jurisdiction on the points and
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What appears to be essential to a judgment on the merits is
that it be a reasoned decision, which clearly states the facts
and the law on which it is based.
Identity of parties
1. Parties on both cases are similar;
2. Actions are between those in privity with
them (e.g. between their successors-ininterest); or
3. There is substantial identity even if there are
additional parties.
NOTE: It is really about identity of interest.
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EXAMPLE: In the first case, it is M v. P for recovery of a
property. A second case filed, now M v. Heirs of P for the
recovery of the same property. Res judicata applies.
Identity of subject matter
With respect to identity of subject matter, this is included
in identity of causes of action. When there is identity of the
cause or causes of action, there is necessarily identity of
subject matter. But the converse is not true, for different
causes of action may exist regarding the same subject
matter, in which case, the applicable aspect of res
judicata is "conclusiveness of judgment." In other words,
the conclusiveness of judgment shall be only with regard
to the questions directly and actually put in issue and
decided in the first case.
EXAMPLE: M sued P for the recovery of 1,000 sqm of
land. M sued again for the recovery of 250 sqm of the
same land. P can invoke res judicata, since the 250 sqm
in the second case is necessarily included in the first
case.
Identity of cause of action
There is identity of causes of action when the two actions
are based on the same delict or wrong committed by the
defendant even if the remedies are different. Even if the
remedies are different, res judicata will apply.
The test to determine the identity of causes of action is to
consider whether the same evidence would sustain both
causes of action.
Two concepts of res judicata
The principle of res judicata embraces two concepts, namely:
1.
2.
Bar by Prior Judgment
a. The judgment or final order is a bar to the
prosecution of a subsequent action based
on the same claim or cause of action (Rule
39, Section 47(a) and (b)).
Conclusiveness of Judgment
a. The judgment or final order precludes the
re-litigation of particular issues or facts on
a different demand or cause of action.
b. Also known as estoppel by verdict, or
estoppel by record, or collateral estoppel by
judgment or preclusion of issues or rule of
auter action pendant (Rule 39, Section
47(c)).
NOTE: The requisites for both are similar, except is no
identity of causes of action in res judicata by conclusiveness
of judgment.
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Bar by Former Judgment vs. Res Judicata by
Conclusiveness of Judgment
BAR BY FORMER
CONCLUSIVENESS OF
JUDGMENT
JUDGMENT
IDENTITY OF
1. Parties
1. Parties
2. Subject matter
2. Subject
3. Causes of action
matter/issues
FIRST JUDGMENT
The
first
judgment The first judgment is
constitutes an absolute bar conclusive only as to
to all matters directly matters directly adjudged
adjudged and those that and actually litigated in the
might have been adjudged. first action. The second
action can be prosecuted.
EFFECT
It has the effect of It has the effect of
preclusion of claims.
preclusion only of issues.
Application of res judicata in quasi-judicial proceedings
It has been held that the rule of res judicata which forbids the
reopening of a matter once judicially determined by
competent authority applies as well to the judicial and quasijudicial acts of public, executive or administrative officers and
boards acting within their jurisdiction as to the judgments of
courts having general judicial powers.
No res judicata in criminal proceedings
Res judicata is a doctrine of civil law and, thus, has no
bearing on criminal proceedings.
SECTION 48: EFFECT OF FOREIGN JUDGMENTS OR
FINAL ORDERS
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:
1.
2.
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
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
An action must be filed in order to enforce a foreign
judgment
In the Philippines, a judgment or final order of a foreign
tribunal cannot be enforced simply by execution. Such
judgment or order merely creates a right of action, and its
non-satisfaction is the cause of action by which a suit can
be brought upon for its enforcement (BPI Securities
Corp. vs. Guevarra, G. R. No. 167052, March 11, 2015).
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It is necessary for an action to be filed in order to enforce
a foreign judgment, even if such judgment has conclusive
effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to
challenge the foreign judgment, and in order for the court
to properly determine its efficacy.
NOTE: The suit upon the foreign judgment is considered
as one incapable of pecuniary estimation and therefore it
must be filed in the RTC.
Petition for recognition of foreign judgment
A petition for recognition of foreign judgment is a special
proceeding, which “seeks to establish a status, a right or
a particular fact,” and not a civil action which is “for the
enforcement or protection of a right, or the prevention or
redress of a wrong” (Fujiki vs. Marinay, G.R. No.
196049, June 26, 2013).
Presumption of validity of a foreign judgment
A foreign judgment is presumed to be valid and binding in
the country from which it comes, until the contrary is
shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein. The
party attacking a foreign judgment has the burden of
overcoming the presumption of its validity (Northwest
Orient Airlines vs. CA, G.R. No. 112573, February 9,
1995).
Actionable issues
A foreign judgment or final order may be repelled by
evidence of any of the following:
1.
2.
3.
4.
5.
Want of jurisdiction,
Want of notice to the party,
Collusion,
Fraud, or
Clear mistake of law or fact.
NOTE: In a domestic judgment, as long as it attained
finality, even if there was a clear mistake of fact and law,
it can no longer be impeached. Except if there is lack of
jurisdiction or extrinsic fraud, then one can file a motion to
annul judgment.
Recognition of a foreign divorce decree
GR: Divorce decrees obtained by foreigners in other
countries are recognizable in our jurisdiction.
XPN: The legal effects thereof – such as on custody, care
and support of the children – must still be determined by
our courts. Before our courts can give the effect of res
judicata to a foreign judgment, it must be shown that the
parties opposed to the judgment had been given ample
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opportunity to do so on grounds allowed under Rule 39,
Section 48 of the Rules of Court (Roehr vs. Rodriguez,
G. R. No. 142820, June 20, 2003).
How divorce decree can be recognized
Before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it.
Presentation solely of the divorce decree is insufficient.
Under Sections 24 and 25 of Rule 132, a writing or document
may be proven as a public or official record of a foreign
country by either:
1.
2.
An official publication; or
A copy thereof attested by the officer having legal
custody of the document.
If the record is not kept in the Philippines, such copy must
be:
1. Accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in
which the record is kept and
2. Authenticated by the seal of his office (Garcia vs.
Recio, G.R. No. 138322, October 2, 2001).
APPEALS
PRELIMINARY CONCEPTS
Appeal is the elevation by an aggrieved party of any decision,
order or award of a lower body to a higher body, by means
of a document which includes the assignment of errors,
memorandum of arguments in support thereof, and the
reliefs prayed for (Technogas Philippines Manufacturing
Corporation v. Clave, 08635-SP, May 31, 1979).
Appeal v. Rule 65
Appeal is a continuation of the proceedings or the
judgment below.
Rule 65 is an original special civil action, which means
that it is a case separate from the one below. The two
cases — Rule 65 and the case with the lower court — run
parallel with each other.
EXAMPLE: X filed a motion with the RTC, but it was
denied. Motion for reconsideration also denied. These are
interlocutory orders. Such (motion and MR) are claimed
to be issued in grave abuse of discretion amounting to
lack or in excess of jurisdiction. X is now invoking the
power of the CA to supervise the RTC and to make sure
that the RTC acts in accordance with its jurisdiction.
Therefore, it is a case separate from the one below (in the
trial court). So unless CA issues a TRO or writ of
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preliminary injunction, the case of appeal and certiorari
under 65 can proceed independent of each other (see
illustration below).
CA supervising RTC under
Rule 65
SC is not a matter of right but of sound judicial
discretion, and will only be granted where there are
special and important reasons thereof (Rule 45,
Section 6).
2.
When the RTC imposes death penalty, the CA shall
automatically review the judgment (Rule 122,
Section 3(a)). If the CA finds that death penalty
should be imposed, the CA shall not render
judgment but certify and elevate the case to the
Supreme Court for review (Rule 124, Sec. 13(a)).
RTC judgment
Appeal
Rule 65
Appeal as a statutory privilege
It is not a constitutional or a natural right (Canton v. City
of Cebu, G.R. No. 152898, February 12, 2007).
The right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the
manner and in accordance with the provisions of law
(Stolt-Nielsen v. NLRC, G.R. No. 147623, December
13, 2005).
NOTE: Only final judgments or orders can be
appealed as distinguished from interlocutory
judgments or orders which are not appealable (Rule
41, Section 1).
Basic guidelines regarding appeal
1.
No trial de novo (starting from the beginning) shall
be made. The appellate courts must decide the
case on the basis of the records, except:
a. When the proceedings were not duly
recorded as when there was absence of a
qualified stenographer (Sec. 22(d), BP
129; Rule 21(d), Interim Rules);
b. Instances when the CA may act as a trial
court.
2.
3.
No new parties;
No change of theory (Naval v. CA, G.R. No.
167412, February 22, 2006);
No new matters (Ondap v. Aubga, G.R. No. L24392, February 28, 1979);
The amendment of pleadings is allowed to conform
to the evidence submitted before the trial court
(Dayao v. Shel, G.R. N. L-32475, April 30, 1980);
The liability of solidarity defendant who did not
appeal is not affected by appeal of solidarity debtor
(Mun. of Orion v. Concha, G.R. No. 26671,
September 17, 1927);
Appeal by guarantor does not inure to the principal
(Luzon Metal v. Manila Underwriter, G.R. No. L27863, August 29, 1969);
In ejectment cases, the RTC cannot award to the
appellant on his counterclaim more than the
amount of damages beyond the jurisdiction of the
MTC (Agustin v. Bataclan, 135 SCRA 342);
The appellate court cannot dismiss the appealed
case for failure to prosecute because the case must
be decided on the basis of the record (Rule 21,
Interim Rules).
Mandatory and jurisdictional
Perfection of an appeal in the manner and within the
period permitted by law is mandatory and jurisdictional.
The requirements for perfecting an appeal must, as a rule,
be strictly followed. Such requirements are considered
indispensable interdictions against needless delays and
are necessary for the orderly discharge of the judicial
business. Failure to perfect the appeal renders the
judgment of the court final and executory. Just as a losing
party has the privilege to file an appeal within the
prescribed period, so does the winner also have the
correlative right to enjoy the finality of the decision
(McBurnie v. Ganzon, G.R. No. 178034 & 178117,
September 18, 2009).
4.
5.
Three Modes of Appeal:
1. Ordinary Appeal (Rule 40 and 41)
a. Notice of appeal
b. Record on appeal
6.
2. Petition for Review (Rule 42)
3. Appeal by Certiorari (Rule 45)
7.
When Appeal is a Matter of Right
8.
1. In civil cases
The first appeal is a matter of right. Appeals from
decisions of the MTC (Rule 40) or RTC (Rule 41)
rendered in the exercise of original jurisdiction
should be granted as a matter of a right if filed
within the reglementary period.
XPN: In civil cases, first appeal is not a matter of
right if filed with the SC. Review of decisions by the
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In criminal cases
9.
Note: Appeal is a speedy remedy, as an adverse party
can file its appeal from a final decision or order
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immediately after receiving it. A party, who is alleging that
an appeal will not promptly relieve it of the injurious effects
of the judgment, should establish facts to show how the
appeal is not speedy or adequate (V.C Ponce Company
Inc. v. Municipality of Paranaque, G.R. No. 178431,
November 12, 2012).
ISSUES TO BE RAISED ON APPEAL
GR: The appellate court shall consider no error unless stated
in the assignment of errors (Sec. Rule 51, Section 8).
XPNs: The court may consider an error not raised on appeal
if it:
1.
2.
3.
4.
5.
6.
7.
8.
Affects the jurisdiction over the subject matter;
Affects the validity of the judgment appealed from;
Affects the proceedings;
Is closely related to or dependent on an assigned
error and properly argued in the brief;
Is a plain and clerical error;
Deals with the lack of jurisdiction of the trial court
(Dy v. NLRC, G.R. No.L-68544, October 27,
1986);
Is necessary to determine whether or not there is
sufficient justification for the award of damages
(Sps. Romulo v. Sps. Layug, G.R. No. 151217,
September 8, 2006); and
Is necessary in arriving at a just decision of the case
(Dumo v. Espinas, G.R. No. 141962, January 25,
2006).
Basis of the court’s power to rule on issues not raised
on appeal
The court is imbued with sufficient authority and discretion to
review matters, not otherwise assigned as errors on appeal,
as it finds that the consideration is necessary in arriving at a
complete and just resolution of the case or to serve the
interest of justice or to avoid dispensing piecemeal justice
(Asian Terminals, Inc. v. NLRC, 541 SCRA 105).
be served upon
the appellee.
Docket fees shall
be paid to the
clerk of court of
the MTC
RULE 41
Notice of appeal/
Record on appeal
filed with the court
of origin (RTC).
Copies of the
notice of appeal
and record shall
be served upon
the appellee.
MODE OF
APPEAL
Notice of appeal/
Record on appeal
filed with the court
of origin (MTC).
MTC à RTC
Copies of the
notice of appeal
and record shall
ISSUE(S) THAT
MAY BE RAISED
Questions of:
1. Law;
2. Facts; or
3. Both.
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RTC (exercising
original
jurisdiction)
à
CA
Docket fees shall
be paid to the
clerk of court of
the RTC.
1. Fact; or
2. Law and
fact.
NOTE: Otherwise,
if the appeal raised
only questions of
law, it should be
directly filed with
the SC.
RULE 42
Verified Petition
for Review filed
with the CA, with
a Certificate of
Non-Forum
Shopping.
Copies shall be
served on the
RTC and the
appellee.
Docket and other
lawful fees and
P500 deposit for
costs shall be
paid to the clerk of
court of the CA.
OUTLINE OF MODES OF APPEAL
COURT BEING
REVIEWED
à
APPELLATE
COURT
RULE 40
Questions of:
Verified Petition
for Review filed
with the CA with a
Certificate of NonForum Shopping.
Copies shall be
served on the
RTC and the
appellee.
Docket and other
lawful fees and
P500 deposit for
costs shall be
MTC
à
RTC (exercising
appellate
jurisdiction)
Questions of:
1. Law;
2. Fact; or
3. Both.
à
CA
RULE 43
Quasi-judicial
agency
exercising
quasi-judicial
functions
à
CA
NOTE: Except
judgments
or
final
orders
issued
under
the Labor by the
Ombudsman
Questions of:
1. Law;
2. Fact; or
3. Both.
NOTE: Unlike in
the other modes of
appeal, an appeal
under the Rule
shall not stay the
award, judgment,
final
order
or
resolution unless
the CA directs
otherwise.
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CIVIL PROCEDURE REVIEWER
paid to the clerk of
court of the CA.
(Criminal case),
COMELEC,
COA, and CTA
En banc
RULE 45
Verified Petition
for Review on
Certiorari
filed
with the SC with a
Certificate of NonForum Shopping.
Copies shall be
served on the
lower
court
concerned and on
the appellee.
RTC
(exercising
original
jurisdiction)
GR: Questions of
law only.
à
Docket and other
lawful fees and
P500 deposit for
costs shall be
paid to the clerk of
court of the SC.
(Rule 45, Sec. 3)
CA/
Sandiganbayan/
Court of Tax
Appeals (en
banc)
Notice of appeal
(in criminal cases)
where the penalty
imposed is death,
reclusion
perpetua or life
imprisonment.
SC
à
XPN: If the petition
for
review
on
certiorari is from
judgment
rendered
in
petitions for writ of
amparo, habeas
data, or kalikasan.
OUTLINE OF REGLEMENTARY PERIODS WITHIN
WHICH TO FILE APPEALS AND THE EXTENSIONS
ALLOWED
PERIOD TO APPEAL
EXTENSION ALLOWED
RULES 40 AND 41
Notice of appeal
Notice of appeal
Within 15 days from notice Period to file notice of
of judgment or of the denial appeal is non-extendible.
of the appellant’s MR or
MNT.
NOTE: It is very simple to
prepare a notice of appeal.
When a record on appeal
is required
Record on appeal
Within 30 days from notice Period to file a record on
of judgment or of the denial appeal may be extended
of the appellant’s MR or provided the motion for
MNT.
extension thereof is filed
within the original 30 day
Habeas corpus
period.
Notice of appeal is filed
within 48 hours from notice NOTE: Preparation of the
of judgment or denial or MR record on appeal may take
or MNT.
time for it may require
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compilation of voluminous
records.
RULE 42
May be extended for 15 days
upon proper motion and the
payment of the full amount of
the docket and other lawful
Petition for review
fees and deposit for costs
Within 15 days from notice of
before the expiration of the
the decision sought to be
original 15 day period.
reviewed or of denial of
petitioner’s MR or MNT.
No further extension shall be
granted, except for the most
compelling reasons and in no
case to exceed 15 days.
RULE 45
On motion duly filed and
Petition for review on served, with full payment of
certiorari
the docket and other lawful
Within 15 days from notice of fees and the deposit for costs
the award, judgment, final before the expiration of the
order or resolution, or from original 15 day period, the SC
the date of its publication or may for justifiable reasons
the denial of the petitioner’s grant an extension of 30 days
MR or MNT.
only within which to file the
petition.
Note: Neypes Doctrine is not applicable to administrative
appeals, in as much as appeal from HLURB Board of
Commissioners to the Office of the President (San
Lorenzo Builders, Inc. v. Baying, G.R. No. 194702,
April 20, 2015).
RULE 40: APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL COURTS
Ordinary appeal
It is an appeal by notice of appeal from a judgment or final
order of a lower court on questions of fact and law (Rule 41,
Section 2(a); Rule 44, Section 15, RoC).
NOTE: A question that was never raised in the court below
cannot be allowed to be raised for the first time on appeal,
without offending the basic rules of fair play, justice and due
process (Villanueva v. Spouses Salvador, G.R. No.
139436, January 25, 2005).
NOTE: The party appealing is called the appellant, and the
adverse party is the appellee.
Subject matter of an appeal
It is a final order or a final judgment.
Final order means there is nothing left to be done by the
court. Unlike an interlocutory order, it means there is
something else to be done by the court.
EXAMPLE: If there is a Motion to Dismiss (MTD), and it is
granted, the order is a final order. If MTD is denied, an
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CIVIL PROCEDURE REVIEWER
answer must be filed, which means that it is an interlocutory
order because there is something else left to be done by
the court.
Q: An intestate proceeding for the settlement of estate
was filed by Silverio Sr. The RTC issued an Omnibus
Order ordering Nelia Dee to vacate the premises of the
property in Forbes Park, Makati City. Nelia, instead of
filing a Notice of Appeal and Record on Appeal, filed a
motion for reconsideration of the Order. She appealed the
order denying the motion for reconsideration. Is the
appeal proper?
A: NO. The appeal taken by Nelia is misplaced as no appeal
may be taken from the order denying the motion for
reconsideration. It is only after a 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. 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. The Order of the RTC
ordering her to vacate the premises is not a final determination
of the case or of the issue of distribution of the shares of the
heirs in the estate or their rights therein. Such Order is
interlocutory and, therefore, not subject to an appeal. She
employed the wrong mode of appeal by filing a Notice of Appeal
with the RTC. Hence, for employing the improper mode of
appeal, the case should have been dismissed (Silverio, Jr. v.
CA and Nelia Silverio-Dee, G.R. No. 178933, September 16,
2009).
Ordinary appeal v. Petition for Review
ORDINARY APPEAL
PETITION FOR REVIEW
(RULES 40, 41)
(RULE 42)
TRANSFER OF RECORDS
All the records are elevated No records are elevated
from the court of origin.
unless the court decrees it.
WHERE FILED
Notice of appeal or record
on appeal is filed with the Filed with the CA.
court of origin.
APPLICABILITY
The case was decided by The case was decided by
the MTC/RTC pursuant to the RTC pursuant to its
its original jurisdiction.
appellate jurisdiction.
COURT ACTION
Matter of right
Discretionary
Since it is a first appeal, the
court has no discretion to
deny the notice of appeal or
record of appeal if it is filed
within the Reglementary
period and complies with the
requirements set forth in Rule
41, Sec. 5 and 6. In other
words, an appeal under
these rules is a matter of
right.
Review of a decision through
a petition for review is
discretionary. The Court of
Appeals may require the
respondent to file a comment
on the petition, not a motion
to dismiss, within 10 days
from notice, or dismiss the
petition if it finds the same to
be patently without merit,
prosecuted manifestly for
delay, or that the questions
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The notice of appeal does not
require the approval of the
court. The function of the
notice of appeal is merely to
notify the trial court that the
appellant was availing of the
right to appeal, and not to
seek the court’s permission
that he be allowed to pose an
appeal (Crisologo v. Daray,
A.M. No. RTJ-07-2036,
August 20, 2008).
raised therein are too
insubstantial
to
require
consideration.
SECTION 1: WHERE TO APPEAL
An appeal may be taken to the RTC exercising jurisdiction
over the area to which the MTC pertains.
Substantive basis
Regional Trial Courts shall exercise appellate jurisdiction
over all cases decided by the following:
1.
2.
3.
Metropolitan Trial Courts,
Municipal Trial Courts, and
Municipal Circuit Trial Courts in their respective
territorial jurisdictions.
Such cases shall be decided on the basis of the entire record
of the proceedings had in the court of origin such
memoranda and/or briefs as may be submitted by the parties
or required by the RTCs. The decision of the RTCs in such
cases shall be appealable by petition for review to the Court
of Appeals which may give it due course only when the
petition shows prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be
reviewed (BP Blg. 129, Sec. 22).
NOTE: The Rules on Summary Procedure no longer applies
when the case is on appeal (Estate of Felomina
Macadangdang v. Gaviola, G.R. No. 156809, March 4,
2009). Thus, when a complaint for unlawful detainer is
appealed to the RTC a judgment affirming or setting aside
the judgment of the MTC may be the subject of a motion
for reconsideration because the said motion is no longer a
prohibited pleading before the RTC which follows the rule on
ordinary civil procedure for appeals taken to it.
SECTION 2: WHEN TO APPEAL
When to appeal
Section 2 of Rule 40 provides the following:
1. Within 15 days after notice of judgment or final
order (non-extendible);
2. Where a record on appeal is required, within 30
days from notice of judgment or final order by
filing a notice of appeal and a record on appeal
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CIVIL PROCEDURE REVIEWER
(extendible, provided the motion for extension is
filed within the Reglementary period of 30 days
(CIR v. CA, G.R. No. 110003, February 9,
2001).
NOTE: The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
Fresh period rule (Neypes doctrine)
Under the “Fresh Period Rule,” a party litigant may
either file his notice of appeal within 15 days from receipt
of the RTC’s decision or file it within 15 days from receipt
of the order denying his motion for new trial or motion for
reconsideration (Neypes v. CA, G.R. No. 141524,
September 14, 2005). This is intended to make the
appeal period uniform.
Obviously, the new 15-day period may be availed of
even if either motion (MR or MNT) is filed; otherwise, the
decision becomes final and executory after the lapse of
the original appeal period.
Reason and basis of the fresh period rule
Pursuant to its sole prerogative to amend procedural
rules, the SC deems it necessary to change the aforestated rule in order to standardize the appeal periods
provided in the Rules of Court, to be counted from receipt
of the order denying the motion for new trial or motion for
reconsideration (whether full or partial or any final order
or resolution) and to afford litigants fair opportunity to
appeal their cases (Neypes v. CA, G.R. No. 141524,
September 14, 2005).
Application of fresh period rule
Retroactive application of the fresh period rule
The fresh period rule may be applied retroactively to
cases where the period for appeal had lapsed prior to
September 14, 2005, date when Neypes was
promulgated. Procedural laws may be given retroactive
effect to actions pending and determined at the time of
their passage, there being no vested rights in the rules of
procedure (Fil-Estate Properties, Inc. v. HomenaValencia, G.R. No. 173942, June 25, 2008).
Extending the period of appeal
The period of appeal may be extended under the sound
discretion of the court. However, the mere filing of the motion
for extension of time to perfect the appeal does not suspend
the running of the reglementary period.
1.
If the extension of the period to appeal is
granted – the notice thereof is served after the
expiration of the period to appeal and the extension
must be computed from the date of notice;
2.
If no action is taken on the motion for extension
or if it is denied after the lapse of the period to
appeal – the right to appeal is lost.
SECTION 3: HOW TO APPEAL
Section 3 of Rule 41 provides for the procedure to appeal.
A. By Notice of Appeal:
1. File a notice of appeal with the trial court that
rendered the judgment or final order appealed from;
2.
The notice of appeal must indicate
a. Name of parties;
b. Judgment or final order appealed from;
c. Material date showing timeliness of appeal
(Material Data Rule);
3.
A copy served on the adverse party; and
The fresh period shall apply to:
1. Rule 40 – Appeal from Municipal Trial Courts to
Regional Trial Courts;
2. Rule 41 – Appeal from Regional Trial Courts;
3. Rule 42 – Petition for Review from the Regional
Trial Courts to the Court of Appeals;
4. Rule 43 – Appeal from the Court of Tax Appeals
and Quasi-Judicial Agencies to the Court of
Appeals; and
5. Rule 45 – Appeal by Certiorari to the Supreme
Court.
NOTE: No motion for extension of time to file a motion for
new trial or reconsideration shall be allowed. But if the
appeal requires the filing of a record on appeal, a
motion for extension to submit record on appeal is
allowed. The motion for extension must be filed within the
30 day period within which the record on appeal should
be filed (CIR v. CA, G.R. No. 11003, February 9, 2001).
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NOTE: There is a need to tell the adverse party of
such appeal for him to be informed that judgment
has not yet attained finality.
4.
Payment in full of docket fees and other lawful fees.
NOTE: Payment shall be in the court of origin.
Within the period for taking an appeal, the appellant
shall pay to the clerk of court which rendered the
judgment or final order appealed from the full
amount of the appellate court docket and other
lawful fees. Payment in full of docket fees and other
lawful fees.
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CIVIL PROCEDURE REVIEWER
NOTE: Payment shall be in the court of origin.
Within the period for taking an appeal, the appellant
shall pay to the clerk of court which rendered the
judgment or final order appealed from the full
amount of the appellate court docket and other
lawful fees.
B. By Record on Appeal:
A record on appeal is required in the following cases:
1. In special proceedings and in other cases of
multiple or separate appeals (Rule 40, Sec. 3,
RoC);
2. In an order of expropriation in eminent domain
proceedings (Rule 69, Sec. 2, RoC);
3. In a judgment for recovery of property of partition
with accounting;
4. In a foreclosure of mortgage (Roman Catholic
Archbishop of Manila v. CA, G.R. No. 111324,
July 5, 1996); and
5. In a judgment for or against one or more of
several defendants, leaving the action to proceed
against the others (Rule 36, Sec. 4, RoC).
Rationale for allowing multiple appeals
It enables the rest of the case to proceed in the event that
a separate and distinct issue is resolved by the court and
held to be final (Roman Catholic Archbishop of Manila
v. CA, G.R. No. 111324, July 5, 1996; Rovira v. Heirs
of Jose C. Deleste, G.R. No. 160925, March 26, 2010).
If multiple appeals, it means that while you are appealing
the final order or the subject matter, the entire records will
not be brought up. The records will retain with the lower
court. But because there is an appeal, there is a need to
reproduce the records, which is why one is given a period
of 30 days to file and prepare the record on appeal.
EXAMPLE: When a government files an eminent domain
case, the first part of the proceeding is a determination of
the existence of just cause, with an order of expropriation.
It is a final order as to the existence of just cause. But it
can be appealed in a second case for another issue. The
appeal of the 1st order – the order of expropriation, is
without prejudice to the continuation of the finding of the
court on the second issue.
Hence, if it is multiple appeals, one needs to make record
on appeals because the original case will remain with the
original court. The Record on Appeal will be used by the
appellate court. But, the Record on Appeal would have to
be approved by the court.
Function of notice of appeal
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The function of a notice of appeal is to notify the trial court that
the appellant is availing of the right to appeal, and not to seek
the court’s permission that he be allowed to pose an appeal
(Crisologo v. Daroy, AM No. RTJ-07-2036, August 30, 2006).
It does not require the approval of the court.
The adverse party may only be apprised initially of the pendency
of an appeal by the notice of appeal. To deprive him of such
notice is tantamount to depriving him of his right to be informed
that the judgment in his favor is being challenged. This
requirement should be complied with so that he may be afforded
the opportunity to register his opposition to the notice of appeal
if he so desires. And service of the notice of appeal upon him
may not be dispensed with on the basis of the appellant's whims
and caprices (Casolita v. CA, G.R. No. 115703, July 8, 1997).
Appeal by record on appeal
Where a record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal within 30 days after
notice of the judgment or final order denying his MR or MNT
(Rule 40, Sec. 2, RoC).
Notice of appeal v. Record on appeal
Notice of Appeal
Normally, appeal is made
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.
Deemed perfected as to
him upon the filing of the
notice of appeal.
Period of appeal is 15
days.
The
court
loses
jurisdiction over the case
upon:
1. Perfection of the
appeal filed in due
time; and
2. Expiration of the
time of the appeal
of
the
other
parties.
Record on Appeal
Required only in Special
Proceedings and other
cases of multiple or
separate appeals.
However, even in cases
where multiple appeals
are allowed, if all the
issues have already been
dispensed with by the trial
court, filing a record on
appeal is no longer
necessary (Marinduque
Mining and Industrial
Corporation v. CA, 567
SCRA 483).
Deemed perfected as to
him upon the approval of
record on appeal (Riano,
2014).
Period of appeal is 30
days.
The
court
loses
jurisdiction only over the
subject matter thereof
upon
1. Approval of the
records on appeal
filed in due time;
and
2. Expiration of the
time to appeal of
the other parties.
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CIVIL PROCEDURE REVIEWER
SECTION 4: PERFECTION OF APPEAL; EFFECT
THEREOF
Perfection of
requirement
an
appeal
as
a
jurisdictional
GR: Perfection of appeal within the reglementary period
is jurisdictional.
XPN: When there has been FAME (fraud, accident,
mistake, or excusable negligence), resort to Petition for
relief from judgment under Rule 38 (Habaluyas v.
Japson, G.R. No. 70895, May 30, 1986).
NOTE: After an appeal to the RTC has been perfected,
the MTC loses its jurisdiction over the case and any
motion for the execution of the judgment should be filed
with the RTC.
Effect of perfected appeal
Judgment is not vacated by appeal, but is merely stayed
and may be affirmed, modified or reversed or findings of
facts or conclusions of law may be adopted by reference.
The following are immediately executory:
1. Decisions of the RTC in civil cases governed by
the Rules of Summary Procedure;
2. Decisions in forcible entry and unlawful detainer
cases; and
3. Decisions of quasi-judicial bodies appealed to the
CA under Rule 43, unless the CA directs
otherwise.
Q: Permskul, who is the lessee of Francisco, vacated the
property he had been leasing and requested for the
refund of his deposit. But Francsico rejected this request
because the lessee still owed him other charges.
Permskul sued in MTC of Makati, and a summary
judgment was rendered. The MTC decision was appealed
to the RTC, which was affirmed by Judge de la Rama in
a memorandum decision. Permskul faults the CA for
sustaining the memorandum decision of the RTC, which
violates Art. VIII, Sec. 14 of the Constitution. Is the
incorporation by reference of the RTC’s memorandum to
the decision of the MTC a valid act that effectively
elevated the case to the CA?
A: Yes. The distinctive features of the memorandum
decision are first, it is rendered by an appellate court, and
second, it incorporates by reference the findings of fact or
the conclusions of law contained in the decision, order or
ruling under review. The idea is to avoid having to repeat
in the body of the latter decision the findings or
conclusions of the lower court since they are being
approved or adopted anyway.
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For the incorporation by reference to be allowed, it must
provide for direct access to the facts and the law being
adopted, which must be contained in a statement
attached to the said decision. Memorandum decision
may be resorted to only in cases where the facts are in
the main accepted by both parties or easily determinable
by the judge and there are no doctrinal complications
involved that will require an extended discussion of the
laws involved. The memorandum decision may be
employed in simple litigations only.
There was substantial compliance with Section 40 of BP
Blg. 129 because of the direct availability and actual
review of the decision of Judge Balita incorporated by
reference in the memorandum decision of Judge de la
Rama (Francisco v. Permskul and CA, G.R. No. 81006,
May 12, 1989).
SECTION 5: APPELLATE COURT DOCKET AND
OTHER LAWFUL FEES
Payment of appellate court docket fees is jurisdictional.
Failure to do so is a ground for dismissal of appeal (Rule 50,
Sec. 1, par. c, RoC).
Mandatory and Jurisdictional requirement
Payment of the full amount of docket fees within the
prescribed period is both mandatory and jurisdictional. It is a
condition sine qua non for the appeal to be perfected and
only then can a court acquire jurisdiction over the case. The
requirement of an appeal fee is not a mere technicality of law
or procedure and should not be undermined except for the
most persuasive of reasons.
Non-observance would be tantamount to no appeal being
filed thereby rendering the challenged decision, resolution or
order final and executory (Julian v. DBP, G.R. No. 174193,
December 7, 2011).
However, failure to pay the appellate court docket fee within
the prescribed period warrants only discretionary as
opposed to automatic dismissal of the appeal and that the
court shall exercise its power to dismiss in accordance with
the tenets of justice and fair play and with great deal of
circumspection considering all attendant circumstances
(Julian v. DBP, G.R. No. 174193, December 7, 2011).
SECTION 6: DUTY OF THE CLERK OF COURT
The original record or the record on appeal, the transcripts and
exhibits taken or submitted in the lower court shall be elevated
to the RTC. The lower court, being a court of record, transcripts
of the proceeding therein and the documentary evidence of the
parties may be involved in the appeal, hence the specific
mention thereof and 15 days within which the clerk of court
should comply with his duty under this section. A certification of
the completeness of the documents transmitted to the appellate
court must be furnished to the parties for their verification and
appropriate action.
SECTION 7: PROCEDURE IN THE REGIONAL TRIAL
COURT
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CIVIL PROCEDURE REVIEWER
1. Upon receipt of the complete record or record on
appeal, the clerk of court of the RTC shall notify
the parties of such fact;
2. Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to
which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be furnished
the adverse party.
NOTE: The memorandum is the counterpart of the
appellant’s brief in Rule 44.
Basis of the Decision
The RTC shall decide the case on the basis of the entire record
of proceedings had in the court of origin and such memoranda
as are filed.
NOTE: If the appellee does not file a memorandum, the case
shall be submitted for decision, but it does not follow that he will
lose the case.
Appeal from MTC to RTC
Appeal decision of MTC by filing notice of appeal and pay
docket fees within 15 days from receipt of judgment.
Submission of appellant’s memorandum
The requirement for the submission of appellant’s
memorandum is a mandatory and compulsory rule. Noncompliance therewith authorizes the dismissal of the
appeal (Mejillano v. Lucillo, G.R. No. 154717, June 19,
2009).
Where the party had appeared by counsel in the inferior
court, the notice contemplated in this section should be
sent to the attorney (Elli, et al. v. Ditan, et al., G.R. No.
L-17444, June 30, 1962); but if the notice was sent to the
party himself and he actually received the same, such
notice is valid and binding (Valuenzuela v. Balayo, G.R.
No. L-18738, March 30, 1963; Cordoviz v. De Obias,
G.R. No/ L-21184, September 5, 1967).
The judgment being appealed is presumed to be correct.
Appellant’s memorandum is a vital part of appeal because
it points out the errors of the judgement.
Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his memorandum.
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.
Duty-bound to submit memorandum on appeal
Rule 40, Section 7 (b) provides that, "it shall be the duty of the
appellant to submit a memorandum" and failure to do so "shall
be a ground for dismissal of the appeal." Thus, under the
express mandate of said Rule, the appellant is duty-bound to
submit his memorandum on appeal. Such submission is not a
matter of discretion on his part. His failure to comply with this
mandate or to perform said duty will compel the RTC to dismiss
his appeal (Enriquez v. CA, G.R. No. 140473, January 28,
2003).
In appeals from inferior courts to the RTC, the appellant's brief
is mandatory for the assignment of errors is vital to the decision
of the appeal on the merits.
GR: This is because on appeal only errors specifically assigned
and properly argued in the brief or memorandum will be
considered.
XPN: Those affecting jurisdiction over the subject matter as well
as plain and clerical errors.
Otherwise stated, an appellate court has no power to resolve an
unassigned error, which does not affect the court's jurisdiction
over the subject matter, save for a plain or clerical error
(Enriquez v. CA, G.R. No. 140473, January 28, 2003).
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Copies of the notice, and record on appeal when required,
shall be served on the adverse party.
The MTC clerk transmits record to the RTC within fifteen
(15) days from perfection of appeal.
The parties are given notice that the records have been
received by the RTC.
1. Within fifteen (15) days from notice of appeal Appellant submits memorandum to the RTC.
2. Within fifteen (15) days from receipt of appellant’s
memorandum – Appellee files his memorandum.
Upon the filing of the appellee’s memorandum, or the
expiration of the period to do so, the case shall be
considered submitted for decision.
If uncontested, the
judgment is entered in the
book of entries.
Any party may appeal by
filing a petition for review
with the CA.
SECTION 8: APPEAL FROM ORDERS DISMISSING CASE
WITHOUT TRIAL; LACK OF JURISDICTION
A. If the lower court dismissed the case without trial
on the merits, the RTC may:
1. Affirm
If ground of dismissal is lack of jurisdiction over the
subject matter and the RTC has jurisdiction, it shall try
the case on the merits as if the case was originally
filed therein; or
NOTE: The RTC shall try the case on the merits,
without prejudice to admission of amended pleadings
and additional evidence.
2. Reverse
In which case, it shall remand the case for further
proceedings.
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NOTE: A dismissal on the ground of lack of
jurisdiction is a dismissal without prejudice (Rule 16,
Sec. 5). A dismissal without prejudice is not
appealable under Rule 41, Sec. 1(h). Nevertheless,
this section makes the MTC’s dismissal of the case
on the ground of lack of jurisdiction appealable to the
RTC. Since Rule 40, Sec. 9 provides that the
provisions of Rule 41 shall apply to Rule 40 only if
they are not inconsistent with the latter rule; Rule 40,
Sec. 8 (Appeal from orders dismissing case without
trial) should prevail over Rule 41, Sec. 1 (subject of
appeal).
In other words, decision on a prior appeal of the same
case is held to be the law of the case, whether that
decision be right or wrong. Once a decision attains
finality, it becomes the law of the case, whether or not said
decision is erroneous. Having been rendered by a court
of competent jurisdiction acting within its authority, the
judgment may no longer be altered even at the risk of
legal infirmities and errors it may contain (BDO v.
Transipek, G.R. No. 181235, July 22, 2009).
Law of the case v. Res judicata
B. If the case was tried on the merits by the lower
court without jurisdiction over the subject matter:
In Res judicata, there are two (2) cases filed in separate
courts. It obtains where a court of competent jurisdiction
has rendered a final judgment or order on the merits of
the case, which operates as an absolute bar against a
subsequent action for the same cause. A substantial
identity is necessary to warrant the application of the rule
(Navarro v. MBTC, G.R. No. 165697, August 4, 2009).
The RTC shall not dismiss the case if it has original
jurisdiction, but shall decide the case, and shall admit
amended pleadings or additional evidence.
In Law of the case, there is a matter elevated on appeal
from the same case, and the higher court has already
ruled on the same case.
Purpose: To avoid double payment of docket fees.
NOTE: No substantial distinction between an appeal and
a Petition for Certiorari when it comes to the application
of the doctrine of the law of the case.
In other words, this section (Rule 40, Sec. 8, RoC)
operates as an exception to the rule that dismissals
without prejudice are not appealable.
NOTE: No other procedural law principle is indeed more
settled than that once a judgment becomes final, it is no
longer subject to change, revision, amendment or
reversal, except only for correction of clerical errors, or
the making of nunc pro tunc entries which cause no
prejudice to any party, or where the judgment itself is void.
The underlying reason for the rule is two-fold: (1) to avoid
delay in the administration of justice and thus make
orderly the discharge of judicial business, and (2) to put
judicial controversies to an end, at the risk of occasional
errors, inasmuch as controversies cannot be allowed to
drag on indefinitely and the rights and obligations of every
litigant must not hang in suspense for an indefinite period
of time (Navarro v. MBTC, G.R. No. 165697, August 4,
2009).
Law of the Case
As a general rule, where the evidence on a second/
succeeding appeal is substantially the same as that on
the first or preceding appeal, all matters or issues
adjudicated on prior appeal are the law of the case on all
subsequent appeals and will not be any more readjudicated.
RULE 41: APPEAL FROM THE REGIONAL TRIAL
COURTS
This rule applies when the RTC is acting in its appellate
jurisdiction.
SECTION 1: SUBJECT OF APPEAL
Appealable Cases
An appeal may be taken from:
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The doctrine is founded on the policy of ending litigation.
The doctrine is necessary to enable the appellate court to
perform its duties satisfactorily and efficiently, which
would be impossible if a question once considered and
decided by it were to be litigated anew in the same case
upon any and every subsequent appeal (BDO v.
Transipek, G.R. No. 181235, July 22, 2009).
SECTION 9: APPLICABILITY OF RULE 41
The other provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not inconsistent with
or may serve to supplement the provision of this Rule.
By virtue of this provision, the inferior courts also exercise
residual jurisdiction in the same manner provided under
Sec. 9 (5) of Rule 41.provided under Sec. 9 (5) of Rule 41.
Conflict in the provisions of Rule 40 and 41
If the provisions of Rule 40 and Rule 41 are in conflict,
and the decision being appealed is rendered by a lower
court, Rule 40 shall prevail because it specifically
provides for the rules on appeal from MTC to RTC.
1. Judgments or final orders that completely
disposes of the case; or
2. A particular matter therein when declared by the
Rules to be appealable.
Non-Appealable Cases
1. Without Prejudice – Order dismissing without
prejudice;
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CIVIL PROCEDURE REVIEWER
NOTE: This refers to the several or separate
judgments provided for in Rule 36 and appeals
therefrom are not absolutely prohibited but
depend upon the circumstances of the case and
the sound discretion of the court.
2. Execution – Order of execution;
3. Pending – Judgment or final orders for or against
one or more of several parties or in a separate
claim while the main case is pending;
4. Appeal – Orders disallowing or dismissing an
appeal;
5. Interlocutory order;
NOTE: Where the order is interlocutory, the
movant has to wait for the judgment and the
appeal from the judgment, in the course of which
appeal he can assign as error the said
interlocutory order. The interlocutory order
cannot be appealed from separately from the
judgment (Mapua v. Suburban Theaters, Inc.,
G.R. No. L-797, July 24, 1948). The general rule
is that where the interlocutory order was rendered
without or in excess of jurisdiction or with grave
abuse of discretion, the remedy is certiorari,
prohibition or mandamus depending on the facts
of the case.
6. Denials – Orders denying a petition for relief or
any similar motion seeking relief from judgment
(motion to set aside judgment by consent,
confession, compromise on the ground of fraud,
mistake, duress or any ground vitiating consent)
Under Rule 41, Section 1(h), no appeal may be taken
from an order dismissing an action without prejudice. It
may be subject of a special civil action for certiorari under
Rule 65 (Makati Insurance v. Reyes, G.R. No. 167403,
August 06, 2008).
Remedy for Non-Appealable Cases
The aggrieved party may file an appropriate special civil
action as provided in Rule 65.
The remedy against a judgment for declaration for
presumptive death filed pursuant to Article 41 of the
Family Code is Rule 65, not appeal, because said
judgment is immediately final and executory (Republic v.
Granada, G.R. No. 187512, June 13, 2012).
SECTION 2: MODES OF APPEAL
There are three modes of appeal from the decision of
the Regional Trial Court:
1. Ordinary Appeal;
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2. Petition for Review; and
3. Appeal by Certiorari
Ordinary Appeal (Appeal by Writ of Error)
Where judgment was rendered by the court in the
exercise of its original jurisdiction. It is taken to the Court
of Appeals on questions of fact and law.
NOTE: Covered by Rule 41.
Petition for Review
Where judgment was rendered by the court in the
exercise of its appellate jurisdiction. It is brought to the
Court of Appeals on questions of fact, questions of law, or
mixed questions of fact and law.
NOTE: Covered by Rule 42.
Appeal by
Certiorari)
Certiorari
(Petition
for
Review
on
This mode is brought to the Supreme Court from the
decision of the Regional Trial Court in the exercise of its
original jurisdiction and only on questions of law.
Certiorari is a remedy designed for the correction of errors
of jurisdiction, not errors of judgment. Consequently, an
error of judgment that the court may commit in the
exercise of its jurisdiction is not correctable through the
original civil action of certiorari (Madrigal Transport v.
Lapanday Holding, G.R. No. 156067, August 11, 2004).
NOTE: Covered by Rule 45.
Questions of Fact v. Question of Law
There is question of law when the doubt or difference
arises as to what the law is on a certain state of facts.
There is question of fact when the doubt or difference
arises as to the truth or the falsehood of alleged facts
(Sesbreño v. Court of Appeals, 240 SCRA 606)
Comparison of Modes of Appeal
ORDINARY
APPEAL
(Rule 41)
Case
is
decided by the
RTC in its
original
jurisdiction;
appealed
to
CA
PETITION
FOR REVIEW
(Rule 42)
WHEN
Case
is
decided by the
MTC,
appealed
to
the
RTC;
petition
for
review with the
CA
HOW
APPEAL BY
CERTIORARI
(Rule 45)
Case
appealed from
RTC to SC or
CA to SC;
raises only a
question of law
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CIVIL PROCEDURE REVIEWER
1. File
a
notice of
appeal or
a record
appeal
with
the
court
of
origin;
2. Pay fees
with MTC;
3. Give copy
to adverse
party.
Within 15
days of notice
of judgment or
from the denial
of the MR or
MNT for notice
of appeal
Within 30
days for cases
with record on
appeal
1. File
a
verified
petition for
review
with
the
CA;
2. Pay fees
with CA;
3. Furnish
the RTC
and
adverse
party with
a copy.
1. File
a
verified
petition for
review
with
the
SC;
2. Pay fees;
3. Submit
proof
of
service of
copy to the
lower court
and
adverse
party.
S
Within 15 days
from
notice
from notice of
the decision to
be reviewed or
from the denial
of the MR or
MNT
Within 15
days from
notice of the
decision to be
reviewed or
from the denial
of the MR or
MNT
Court
may
grant
an
additional 15
days
from
payment
Court may
grant
extension of
time to file
petition
The special civil action for certiorari and appeal are two
different remedies that are mutually exclusive they are not
alternative or successive. Where appeal is available,
certiorari will not prosper, even if the ground therefore is
grave abuse of discretion. Basic is the rule that certiorari
is not a substitute for the lapsed remedy of appeal
(Madrigal Transport v. Lapanday Holding, G.R. No.
156067, August 11, 2004).
Difference between Doctrine of Conclusive Finality
and Doctrine of Great Respect and Finality
DOCTRINE OF
CONCLUSIVE FINALITY
Applies to factual findings
of administrative
agencies in the exercise
of their quasi-judicial
function.
No evidentiary
requirement
Based on comity
DOCTRINE OF GREAT
RESPECT AND
FINALITY
Applies to factual findings
of administrative agencies
in the exercise of their
quasi-judicial function.
Must be supported by
substantial evidence
Based on the doctrine
that administrative
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Not used in the Philippine
legal system
agencies possess
specialized knowledge
and expertise in their
respective fields
Established standard
Factual findings made by quasi-judicial and administrative
bodies when supported by substantial evidence are
accorded great respect and even finality by the appellate
courts (Cosmos Bottling Corporation v. Pablo
Nagrama, Jr., G.R. No. 164403, March 04, 2008).
SECTION 3: PERIOD OF ORDINARY APPEAL
The appeal shall be taken within:
1. 15 Days from notice of the judgment or final order
appealed from;
2. 30 Days from notice of the judgment or final
order, where a record of appeal is required;
3. 48 Hours from notice of the judgment or final
order appealed from in habeas corpus cases.
NOTE: Record on appeal is needed for special
proceedings such as probate, partition and expropriation
proceedings. The notice of appeal must be directed on the
original order not the resolution denying the motion for
reconsideration of the final order (Oro v. Diaz, 361 SCRA
108).
Interruption of Period to Appeal
The period to 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.
In order to interrupt, the motion for reconsideration or motion for
new trial must be with the requisite proof of service to the other
party filing the motion in due time. NOTE: It is not required to file
a motion for reconsideration or new trial before one can file a
notice for appeal. However, under A.M. No. 02-11-10-SC, in
petitions for judgment of nullity of marriage, annulment of
marriage, or legal separation, it is a pre-requisite to file a motion
for reconsideration before one can appeal.
Since second and third motion for reconsiderations are
prohibited, the running of the period to file a notice of appeal has
not been tolled (Obando v. Court of Appeals, 366 SCRA 673).
Fresh Period Rule (Neypes Ruling)
A fresh period of 15 days within which to file the notice of
appeal in the Regional Trial Court, counted from receipt
of the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final order
or resolution (Neypes v. Court of Appeals, G.R. No.
141524, September 14, 2005).
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CIVIL PROCEDURE REVIEWER
As reflected in the the decision in Neypes, the "fresh
period rule" shall apply to the following:
1. Rule 40 (appeals from the Municipal Trial Courts
to the Regional Trial Courts);
2. Rule 41 (appeals from the Regional Trial Courts
to the Court of Appeals or Supreme Court);
3. Rule 42 (appeals from the Regional Trial Courts
to the Court of Appeals);
4. Rule 43 (appeals from quasi-judicial agencies to
the Court of Appeals); and
5. Rule 45 (appeals by certiorari to the Supreme
Court) (Panolino v. Tajala, G.R. No. 183616,
June 29, 2010).
SECTION 4: APPELLATE COURT DOCKET AND
OTHER LAWFUL FEES
Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment
or final order appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be transmitted to the
appellate court together with the original record on
appeal.
Failure to Pay
Failure to pay docket fee is a ground for dismissal of
appeal. This rule cannot be suspended by the mere
invocation of “the interest of substantial justice.”
Procedural Rules may be relaxed only in exceptionally
meritorious circumstances (Lazaro v. Court of Appeals,
G.R. No. 137761, April 6, 2000).
SECTION 5: NOTICE OF APPEAL
Notice of appeal must specify the following matters:
1.
2.
3.
4.
Parties to the appeal;
Judgment or final order or part thereof appealed
from;
The court to which the appeal is being taken; and
Material dates showing the timeliness of the appeal
(Material Data Rule)
Even if no notice of appeal was filed, such defect may be
disregarded if there was a record on appeal duly filed, as the
same is equivalent to a notice of appeal (Calo et al. v. CFI
of Agusan, 98 Phil. 420). Hence, the failure to serve a copy
of the notice of appeal to the adverse party who was,
however, served with a copy of the record on appeal wherein
such notice of appeal is embodied, does not impair the right
of appeal (Director of Lands, et al. v. Reyes, et al., G.R.
No. L-27594, November 28, 1975).
SECTION 6: RECORD ON APPEAL; FORM AND
CONTENTS
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The record on appeal should include:
1.
2.
3.
4.
5.
6.
Full names of all the parties to the proceedings
stated in the caption of the record (do not implead
court or judge);
The judgment or final order from which the appeal is
taken;
In chronological order, copies of only such
pleadings, petitions, motions, and all interlocutory
orders as are related to the appealed judgment for
the proper understanding of issues of law or fact
involved in the appeal;
Such data as will show that the appeal was
perfected on time (Material Data Rule);
Reference; and
Subject index, of record on appeal exceeds 20
pages.
The requirement that the record on appeal must show on its
face that the appeal was perfected on time is mandatory and
jurisdictional and, if not complied with, the appellate court
acquires no jurisdiction and the appeal must be dismissed
(Araneta v. Madrigal & Co., Inc., G.R. No. L-26227-28,
October 25, 1966).
Section 6, Rule 41 obviously refers to the record on appeal
filed with the trial court, not to the printed record on appeal
filed in the appellate court. At any rate, the appellate court is
in a position to determine the date aforementioned, by
examining the original record on appeal thereto forwarded
and, hence, forming part of its own record (Reyes v.
Carrasco, G.R. No. L-28783, March 31, 1971; Sison v.
Gatchalian, et al., G.R. No. L-34709, June 15, 1972).
It is the trial court’s duty to determine whether or not the
appeal has been actually perfected on time and to allow the
amendment of the record on appeal in order to include
therein any relevant omitted data (Design Masters, Inc. v.
CA, et al., G.R. No.L-31510, March 31, 1971; Ozaeta, Jr.,
et al. v. CA, et al., G.R. No. L-26938, October 29, 1971).
The “material data rule” enunciated in Sec. 6, Rule 41 need
not be observed if the trial court issued an order to the effect
that the appeal was seasonable perfected with the filing of
the notice of appeal, and the record on appeal (and, formerly,
the appeal bond) within the reglementary period (Pimentel,
et al. v. CA et al., G.R. No. L-39684, June 27, 1975).
SECTION 7: APPROVAL OF RECORD ON APPEAL
If the appeal is through a record on appeal:
1. File a record on appeal
2. If no objection is filed by the appellee within five
days from receipt of a copy thereof, the trial court
may:
a. Approve it as presented; or
b. Upon its own motion or at the instance of the
appellee, direct its amendment by the
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CIVIL PROCEDURE REVIEWER
inclusion of any omitted matters which are
deemed essential to the determination of the
issue of law or fact involved in the appeal
If the trial court orders the amendment
If the trial court orders the amendment of the record, the
appellant must redraft the record within the time fixed by
the order or if there is no time specified, within 10 days
from receipt thereof.
The amendment shall include such additional matters as
the court may have directed the appellant to incorporate
in their proper chronological sequence.
The appellant shall submit the redrafted record for
approval with notice to the appellee (Rule 41, Sec. 7,
RoC).
SECTION 8: JOINT RECORD ON APPEAL
Where both parties are appellants, they may file a joint
record on appeal within 30 days from notice of the
judgment or final order, or that fixed by the court.
SECTION 9: PERFECTION OF APPEAL; EFFECT
THEREOF
An appeal is deemed perfected in the following
instances:
1. 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.
2. 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 (Tan, pg. 1281, 2017
ed.).
When does the court lose its jurisdiction?
NOTICE OF APPEAL
The court loses its
jurisdiction over the case
upon the perfection of
appeals filed in due time
and the expiration of the
time to appeal of the other
parties.
RECORD ON APPEAL
The court loses its
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.
Petitioner PNB's appeal is deemed perfected "as to it"
when it timely led its first notice of appeal, following
Section 9, Rule 41. Its appeal having been perfected,
petitioner did not need to file a second notice of appeal
even if the trial court granted, as it did, the other party's
motion for reconsideration and modified the decision to
increase the monetary award (PNB v. Sps Cordova,
G.R. No. 169314, May 14, 2008).
Where appeal is available to the aggrieved party, the
action for certiorari will not be entertained. Remedies of
appeal and certiorari are mutually exclusive, not
alternative or successive. Hence, certiorari is not and
cannot be a substitute for an appeal (Madrigal Transport
v. Lapanday Holding, G.R. No. 156067, August 11,
2004).
Residual Jurisdiction
"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. This stage is reached upon the perfection of
the appeals by the parties or upon the approval of the
records on appeal, but prior to the transmittal of the
original records or the records on appeal (DBP v. Carpio,
G.R. No. 195450, February 01, 2017).
Q: What is the residual power of the Regional Trial Court?
A: Prior to the transmittal of the original record or the
record on appeal, the court may:
1. Issue orders for the protection and preservation
of the rights of the parties which do not involve
any matter litigated by the appeal;
2. Approve compromises;
3. Permit appeals of indigent litigants;
4. Order execution pending appeal in accordance
with 2 of Rule 39; and
5. Allow withdrawal of the appeal (Rule 41, Sec. 9,
RoC).
Before the trial court can be said to have residual
jurisdiction over a case, a trial on the merits must have
been conducted; the court rendered judgment; and the
aggrieved party appealed therefrom (DBP v. Carpio,
G.R. No. 195450, February 01, 2017).
NOTE: The appeal is perfected as to the court upon the
perfection of appeals filed in due time and the expiration
of the time to appeal of the other parties.
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SECTION 12: TRANSMITTAL
SECTION 10: DUTY OF CLERK OF COURT OF THE
LOWER COURT UPON PERFECTION OF APPEAL
Q: What are the duties of a clerk of court of the lower court
upon perfection of appeal?
A: Within thirty (30) days after perfection of all the appeals
in accordance with the preceding section, it shall be the
duty of the clerk of court of the lower court:
1. To verify the correctness of the original record or
the record on appeal, as the case may be aid to
make certification of its correctness;
2. To verify the completeness of the records that will
be, transmitted to the appellate court;
3. If found to be incomplete, to take such measures
as may be required to complete the records,
availing of the authority that he or the court may
exercise for this purpose;
4. To transmit the records to the appellate court; and
5. If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with copies of
his letter of transmittal of the records to the appellate court
(Rule 41, Sec. 10, RoC).
SECTION 11: TRANSCRIPT
Q: What is the rule on the transcript of stenographic notes?
A: Upon the perfection of the appeal, the clerk shall
immediately direct the stenographers concerned to:
1.
2.
3.
Attach to the record of the case five (5) copies of the
transcripts of the testimonial evidence referred to in
the record on appeal;
The stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix to
their transcripts an index containing the names of
the witnesses and the pages wherein their
testimonies are found, and a list of the exhibits and
the pages wherein each of them appears to have
been offered and admitted or rejected by the trial
court; and
The transcripts shall be transmitted to the clerk of
the trial court who shall thereupon arrange the same
in the order in which the witnesses testified at the
trial, and shall cause the pages to be numbered
consecutively (Rule 41, Sec. 10, RoC).
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Q: What are the documents to be transmitted to the
appellate court?
A: The clerk of the trial court shall:
1. Transmit to the appellate court the original record
or the approved record on appeal within thirty (30)
days from the perfection of the appeal;
2. Together with the proof of payment of the
appellate court docket and other lawful fees;
3. A certified true copy of the minutes of the
proceedings;
4. The order of approval;
5. The certificate of correctness;
6. The original documentary evidence referred to
therein; and
7. The original and three (3) copies of the
transcripts.
Copies of the transcripts and certified true copies of the
documentary evidence shall remain in the lower court for
the examination of the parties (Rule 41, Sec. 12, RoC).
SECTION 13: DISMISSAL OF APPEAL
Q: When will the trial court dismiss the appeal?
A: Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial court
may motu propio or on motion dismiss the appeal:
1. For having been taken out of time; or
2. Non-payment of the docket and other lawful fees
within the reglementary period (Tan, p. 1286,
2017 ed.).
The power of the trial court to disallow or disapprove a
notice of appeal that has been filed out of time is expressly
recognized by the Rules of Court. The approval of the
notice becomes a ministerial duty of the court only when
the appeal is filed on time. Otherwise, the court has the
discretion to refuse or disallow it in accordance with the
Rules (Oro v. Diaz, G.R. No. 140974, July 11, 2001).
RULE 42: Petition for Review from the Regional Trial
Courts to the Court of Appeals
Rule 42 applies to an appeal from the judgment or final order
of the RTC to the CA in cases decided by the former in the
exercise of its appellate jurisdiction.
A petition for review may not be treated as a notice of appeal.
These modes of appeal clearly remain distinct procedure
which cannot be loosely interchanged with one another. A
notice of appeal is filed with the RTC that rendered the
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CIVIL PROCEDURE REVIEWER
assailed decision, judgment or final order, while a petition for
review is filed with the CA.
2.
State material dates. (to show the timeliness of
appeal)
SECTION 1: HOW APPEAL TAKEN; TIME FOR
FILING
3.
State matters involved, and the issues/errors
allegedly committed by the RTC.
4.
State the arguments.
5.
Attach certified true copies of the assailed orders.
6.
Attach relevant pleadings.
7.
Verification and Certification for non-forum shopping
(Rule 42, Sec. 2, RoC).
When can there be a Petition for Review with the
CA?
When the RTC acts on its appellate jurisdiction and the
party wishes to appeal on errors of fact, or law, or both
fact and law. This is the first instance when the CA can
decide on pure questions of law. The appeal shall be
made within 15 days from notice of the decision sought
to be reviewed or of the denial of petitioner’s motion for
new trial or reconsideration filed in due time after
judgement.
How to file Petition for review?
NOTE: A certificate of non-forum shopping is required even
if a petition for review is not an initiatory pleading (Anderson
v. Ho, G.R. No. 172590, January 7, 2013).
1. File a verified petition
Q: Why is there no need to implead lower courts and judges?
2. Pay proper docket fees and other lawful fees,
depositing the amount of P500 for costs.
A: In petition for review, you do not implead the lower court
judge because it is not about grave abuse of discretion.
3. Must be filed within 15 days from receipt of the
final order or decision
4. Copy of the decision must be served to the RTC
and adverse party
5. Upon proper motion and payment of docket fees
and other lawful fees, the CA may grant an
extension of time to file the petition.
NOTE: Such motion and payment must be made
within the reglementary period. However, no
further extension shall be granted except for the
most compelling reason and in no case to exceed
15 days (Rule 42, Sec. 1, RoC).
The Neypes ruling applies to criminal cases. B.P. Blg.
129, as amended, the substantive law on which the Rules
of Court is based, makes no distinction between the
periods to appeal in a civil case and in criminal case (Yu
v. Hon. Rosa Samson-Tatad, G.R. No. 170979,
February 9,2011).
SECTION 2: FORM AND CONTENTS
Requirements as to form:
1. State the full name of the parties to the case.
Lower courts and judges should not be
impleaded.
Q: Why is there a need to attach relevant pleadings?
A: It is necessary because in petition for review, the records
are not brought to the CA. It stays with the RTC.
Pleadings other than Petition and Comment
CA correctly dismissed the petition because the complaint,
answer and the parties’ position papers which they filed
before the MTC and the RTC were not attached (Canton v.
City of Cebu, G.R. No. 152898, February 12, 2007).
Filing of a reply and a rejoinder are not a matter of right. One
should wait for the order of the court allowing the submission
of said pleadings.
SECTION 3: EFFECT OF FAILURE TO COMPLY WITH
THE REQUIREMENTS
Failure of the petitioner to comply with any of the
requirements shall be sufficient ground for the
dismissal:
1. Payment of the proper docket and other lawful
fees,
2. Deposit of costs,
3. Proof of service of the petition, and
4. Contents of and the documents which should
accompany the petition
NOTE: CA may dismiss the petition if it finds the same to
be patently without merit, prosecuted merely for delay or
that the questions raised are too unsubstantial to require
consideration.
SECTION 4: ACTION ON THE PETITION
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After the filing of the petition for review, the CA will then
read the petition to see whether it is complete in
substance and in form.
If all requirements have been complied with
CA may issue an Order for the respondent to file his
Comment on the petition. The comment should be filed
within a period of 10 days from the notice of the order.
CA may dismiss the petition if it finds the same to be:
1. Patently without merit; or
2. Prosecuted manifestly for delay; or
3. The questions raised therein are
unsubstantial to require consideration.
If upon the filing of the comment or such other pleadings as
the court may allow or require, or after the expiration of the
period for the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima
facie that the lower court has committed an error of fact or
law that will warrant a reversal or modification of the
appealed decision, it may accordingly give due course to the
petition (Rule 42, Sec. 6, RoC).
SECTION 7: ELEVATION OF RECORD
too
SECTION 5: CONTENTS OF COMMENT
The comment of the respondent shall be filed in:
1. Seven (7) legible copies,
2. Accompanied by certified true copies of such
material portions of the record referred to therein
together with other supporting papers and shall:
a. State whether or not he accepts the
statement of matters involved in the
petition;
b. Point out such insufficiencies or
inaccuracies as he believes exist in the
petitioner's statement of matters involved
but without repetition; and
c.
committed an error on fact, or law, or on both fact and law,
that will warrant a reversal or modification of judgment
sought to be reviewed or dismiss the petition if it finds that it
is patently without merit; prosecuted manifestly for delay; the
questions raised therein are too insubstantial to require
consideration (Rule 42, Sec. 4, RoC).
State the reasons why the petition
should not be given due course. A copy
thereof shall be served on the petitioner.
Q: What is the effect of not filing a comment?
A: The respondent will not be declared in default because
this is no longer a trial before the trial court. The CA will
resolve the case on the basis of the petition if it finds merit
on giving due course to such. However, the CA might hold
the respondent liable for contempt for not obeying the
order of the CA.
SECTION 6: DUE COURSE
Petition for review is not a matter of right
It is discretionary upon the CA. It may only be given due
course if it shows on its face that the lower court has
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The records in the RTC need not be elevated to the CA. It is
only discretionary on the part of the CA to order the elevation
of records to it from the RTC. This is because until the
petition is given due course, the trial court may still issue a
writ of execution pending appeal and some cases such as
ejectment and those of Summary Procedure are immediately
executory.
The CA may order the clerk of court of the RTC to elevate
the original record of the case including the oral and
documentary evidence within 15 days from notice (Rule 42,
Sec. 7, RoC).
SECTION 8: PERFECTION OF APPEAL; EFFECT
THEREOF
Q: When is appeal perfected?
A: The appeal is perfected as to the petitioner upon the timely
filing of a petition for review and the payment of the
corresponding docket and other lawful fees.
Effect of perfected appeal under Rule 42
Upon perfection of appeal, the RTC loses its jurisdiction over the
case and it expires the time of the other parties to appeal.
The appeal stays the execution (meaning it will not be
executory yet) except:
1.
2.
CA, or the law provides otherwise; or
For cases in Summary Procedure, which are
immediately executory.
As long as the judgment is still pending appeal, even if such is
final, it is not yet executory.
Doctrine of Residual Jurisdiction
The doctrine of residual jurisdiction also applies to rule 42. RTC
loses jurisdiction over the case upon perfection of the appeals
filed in due time and the expiration of the time to appeal of the
other parties. The RTC has residual powers because the
records are still with them as provided by Rule 42, it need not be
elevated to the CA.
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Before the CA gives due course to the petition for
review, the RTC may issue orders:
1. For the protection and preservation of the rights
of the parties which does not involve any matter
litigated by the appeal
2. To approve compromises
3. To permit appeals of the indigent litigants
4. To order execution pending appeal in accordance
with Section 2, Rule 39
5. To allow withdrawal of appeal (Rule 42, Sec. 8,
RoC).
SECTION 9: SUBMISSION FOR DECISION
If the petition is given due course:
1. The case may be set for oral argument; or
2. The parties may be required to submit
memoranda within 15 days from notice;
3. Case shall be deemed submitted for decision
upon filing of the last pleading or memorandum.
RULE 43 – APPEALS FROM THE [COURT OF TAX
APPEALS AND] QUASI-JUDICIAL AGENCIES TO
THE COURT OF APPEALS
Court of Tax Appeals (CTA) should be omitted from
the title of Rule 43
Appeals from the CTA shall be taken to the Supreme
Court (via Rule 45), pursuant to Republic Act No. 1125.
CTA levels with the CA in terms of hierarchy.
An appeal from a decision or resolution of the CTA in
Division on an MNT or MR shall be taken to the CTA En
Banc by petition for review as provided in Rule 43 of the
Rules of Court.
A party adversely affected by a decision or ruling of the
CTA en banc may appeal therefrom by filing with the SC
a verified petition for review on certiorari within 15 days
from receipt of a copy of the decision or resolution, as
provided in Rule 45 of the Rules of Court. If such party
has filed a MR or for new trial, the period herein fixed shall
run from the party’s receipt of a copy of the resolution
denying the motion for reconsideration or for new trial.
SECTION 1: SCOPE
Appeals from awards, judgments, final orders, or resolutions of
or authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions.
Quasi-judicial agency
It is an organ of the government other than a court and other
than a legislature, which affects the rights of private parties
either through adjudication or rulemaking.
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Agencies enumerated under rule 43
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
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 RA 6657;
Government Service Insurance System;
Employee Compensation Commission;
Agricultural Inventions Board;
Insurance Commission;
Philippine Atomic Energy Commission;
Board of Investments;
Construction Industry Arbitration Commission; and
Voluntary Arbitrators authorized by law
NOTE: Include the voluntary arbitrator appointed and
accredited under the Labor Code or pursuant to the
provisions of R.A. No. 876, as they are considered
included in the term “quasi-judicial instrumentalities”
(Luzon Development Bank v. Association of Luzon
Development Bank Employees, et al., G.R. No.
120319, October 6, 1995).
A.M. No. 04-9-07 SC Re Mode of Appeal in Cases
Formerly Cognizable by the Securities and
Exchange Commission
All decisions and final orders in cases falling under the Interim
Rules of Corporate Rehabilitation and the Interim Rules of
Procedures Governing Intra-Corporate Controversies under
Republic Act No. 8799 shall be appealable to the Court of
Appeals through a petition for review under Rule 43 of the Rules
of Court.
Office of the President (OP)
Case decided by CAO, appealed to the DTI. DTI
dismissed. Decision of the DTI was appealed to the OP.
OP reversed the decision. Complainant filed a petition for
certiorari with the CA alleging lack of jurisdiction of the OP
for ruling cases of Consumers Law. CA dismissed the
petition on the ground of wrong mode of appeal. MR
denied as well. In this case, a special law, RA 7394,
likewise expressly provided for immediate judicial relief
from decisions of the DTI Secretary by filing a petition for
certiorari with the “proper court”. Hence, private
respondent should have elevated the case directly to the
CA through a petition for certiorari. In filing a petition for
certiorari before the CA raising the issue of OP’s lack of
jurisdiction, complainant Moran, Jr., thus availed of the
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proper remedy (Moran, Jr. v. Office of the President,
G.R. No. 192957, September 29, 2014).
1.
Office of the City Prosecutor – OCP is not a quasijudicial agency since it does not decide on the rights
and obligations of the parties. Decisions of the OCP
should be appealed to the DOJ via petition for
review and not to the CA.
2.
Department of Justice (DOJ) – The decision of the
DOJ cannot be appealed to the CA via Rule 43
because the DOJ is not a quasi-judicial body
(Santos v. Go, G.R. No. 156081, October 15,
2004).
3.
Review of judgments of the Commission on
Elections (COMELEC) and Commission on Audit
(COA) may be brought by the aggrieved party to the
SC on certiorari under Rule 65 by filing a petition
within 30 days from notice (Rule 64, Secs. 2 & 3,
RoC).
NOTE: Proper court – Rule 43 will apply because you
have a quasi-judicial agency, therefore you will appeal via
Rule 43.
Decisions of the RTC acting as a Special Commercial
Court
All decisions and final orders in cases falling under the:
(1) Interim Rules of Corporate Rehabilitation; and (2) The
Interim Rules of Procedure Governing Intra-Corporate
Controversies under R.A. No. 8799, shall be appealable
to the CA through a petition for review under Rule 43 of
the Rules of Court.
Rule 43 of the Rules of Court prescribes the procedure to
assail the final orders and decisions in corporate
rehabilitation cases fled under the Interim Rules of
Procedure on Corporate Rehabilitation. Liberality in the
application of the rules is not an end in itself. It must be
pleaded with factual basis and must be allowed for
equitable ends. There must be no indication that the
violation of the rule is due to the negligence or design.
Liberality is an extreme exception, justifiable only when
equity exists (Viva Shipping Lines, Inc. v. Keppel
Philippines Mining, Inc., G.R. No. 177382, February
16, 2016).
Other quasi-judicial bodies covered by Rule 43
1. Professional Regulations Commission (PRC) –
The PRC is not expressly mentioned as one of
the agencies which are expressly enumerated
under Rule 43, Section 1 of the Rules of Court,
however, its absence from the enumeration does
not, by this fact alone, imply its exclusion from the
coverage of said Rule. The phrase “among these
agencies” confirms that the enumeration made in
the Rule is not exclusive to the agencies therein
listed (Cayao-Lasam v. Sps. Ramolete, G.R.
No. 159132, December 18, 2008).
2. National Water Resources Board – Petitioner is
not in the list of the quasi-judicial agencies
specifically mentioned in Rule 43. The list of
quasi-judicial agencies specifically mentioned in
Rule 43 is not meant to be exclusive. The
employment of the word “among” clearly instructs
so (National Water Resources Board v. A.L.
Ang Network, Inc., G.R. No. 186450, April 14,
2010).
Other quasi-judicial bodies NOT covered by Rule 43
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SECTION 2: CASES NOT COVERED
Exception to Rule 43
This Rule shall not apply to judgments or final orders issued
under the Labor Code of the Philippines.
Judgements and final orders or resolutions of the NLRC are
brought to the Court of Appeals via Rule 65, then up to the SC
via Rule 45 (pursuant to St. Martin’s Funeral Homes v.
NLRC, G.R. No. 130866, September 16, 1998).
Judgments and final orders or resolutions of the Employees
Compensation Commission should be brought to the CA
through a petition for review under this Rule (Regalado, 2008).
SECTION 3; WHERE TO APPEAL
Appeals from judgment and final orders of quasi- judicial
bodies/agencies enumerated in Rule 43 are now required to
be brought to the Court of Appeals under the requirements
and conditions set forth in Rule 43, whether the appeal
involves questions of law, of fact, or mixed questions of
fact and law.
This is another instance when the Court of Appeals can
review solely questions of law. The other instance when the
Court of Appeals can review solely questions of law is in Rule
42 (Petition for Review from the RTC).
In an appeal via certiorari, only questions of law may be
reviewed. A question of law arises when there is doubt or
difference as to what the law is on a certain state of facts
(Zaragoza v. Noblez, G.R. No. 144560, May 13, 2004).
In view of absence of any of the recognized exceptions that
would warrant a review of the findings of facts of the
appellate court, the issue raised by petitioner as regards the
date of the filing of the petition for review will not be
considered by the SC, the resolution thereon by the CA being
final (Ibid).
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CIVIL PROCEDURE REVIEWER
The question on whether petitioner can retire under RA
660 or RA 8291 is undoubtedly a question of law because
it centers on what law to apply in his case considering that
he was previously retired from the government under a
particular statute and that he was re-employed by the
government. These facts are admitted and there is no
need for an examination of the probative value of the
evidence presented (Santos v. Committee on Claims
Settlement, G.R. No. 158071, Spril 2, 2009).
SECTION 4: PERIOD OF APPEAL
appeal has been filed (St. Louis University v.
Cobarrubias, G.R. No. 187104, August 3, 2010).
Exemption from payment
Exemption from payment of docketing and other lawful
fees and the deposit for costs may be granted by the
Court of Appeals upon a verified motion setting forth valid
grounds therefor.
If the Court of Appeals denies the motion, the petitioner
shall pay the docketing and other lawful fees and deposit
for costs within fifteen (15) days from notice of the denial.
The appeal shall be taken within fifteen (15) days from:
SECTION 6: CONTENTS OF THE PETITION
1. Notice of the award, judgment, final order or
resolution, or
2. From the date of its last publication, if publication
is required by law for its effectivity, or
3. The denial of petitioner's motion for new trial or
reconsideration duly filed in accordance with the
governing law of the court or agency a quo.
NOTE: Applicability of the Neypes ruling.
When extension is allowed:
1. Upon proper motion; AND
2. Payment of the full amount of the docket fee
before the expiration of the reglementary period.
The Court of Appeals may grant an additional period of
fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for
the most compelling reason and in no case to exceed
fifteen (15) days.
SECTION 5: HOW APPEAL TAKEN
1. By filing a verified petition for review in seven (7)
legible copies with the Court of Appeals;
2. With proof of service of a copy thereof on the
adverse party and on the court or agency a quo;
a. The original copy of the petition intended
for the Court of Appeals shall be
indicated as such by the petitioner.
3. Upon the filing of the petition, the petitioner shall
pay to the clerk of court of the Court of Appeals
the docketing and other lawful fees; and
4. Deposit the sum of P500.00 for costs.
NOTE: Payment of full docket fees within the prescribed
period is not only mandatory, but also jurisdictional. It is
an essential requirement, without which the decision
appealed from would become final and executory as if no
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1.
2.
3.
State the full names of the parties to the case, without
impleading the court or agencies either as petitioners
or respondents;
Contain a concise statement of the facts and issues
involved and the grounds relied upon for the review;
Be accompanied by a clearly legible duplicate original
or a certified true copy of the award, judgment, final
order or resolution appealed from, together with
certified true copies of such material portions of the
record referred to therein and other supporting papers;
NOTE: The copies of the pleadings need not be
certified true copies. The only document that needs to
be certified is the decision and the Order denying the
MR. Rule 42 should not be stricter than Rule 45 and
Rule 65 (Gonzales v. Civil Service Commission,
G.R. No. 139131, September 27, 2002).
The terms “Certified True Copy” and “Duplicate
Original” as found in paragraph 6(c) of Revised
Administrative Circular No. 1-95 were clarifioed in
Administrative Circular No. 3-96 which further provided
that: the "duplicate original copy" shall be understood
to be that copy of the decision, judgment, resolution or
order which is intended for and furnished to a party in
the case or proceeding in the court or adjudicative body
which rendered and issued the same. The "certified
true copy" thereof shall be such other copy furnished
to a party at his instance or in his behalf, duly
authenticated by the authorized officers or
representatives of the issuing entity as hereinbefore
specified. The rationale behind the need for the
submission of the CTC is the fact that the records of
the case will no longer be transmitted to the appellate
court (Jaro v. CA, G.R. No. 127536, February 19,
2002).
4. Contain a sworn certification against forum
shopping as provided in the last paragraph of
section 2, Rule 42; and
5. State the specific material dates showing that it
was filed within the period fixed herein (Material
Data Rule).
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SECTION 7: EFFECT OF FAILURE TO COMPLY WITH
REQUIREMENTS
The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.
SECTION 8: ACTION ON THE PETITION
Action by the Court of Appeals
CA may require respondent to file a motion to dismiss,
within 10 days from receipt of order.
No summons will be served because this is already an
appeal. It is the receipt of the order that the CA acquires
jurisdiction over the person of the respondent.
SECTION 9: CONTENTS OF COMMENT
The comment shall be filed within ten (10) days from
notice in seven (7) legible copies and accompanied by
clearly legible certified true copies of such material
portions of the record referred to therein together with
other supporting papers.
The comment shall:
1. Point out insufficiencies or inaccuracies in
petitioner's statement of facts and issues; and
2. State the reasons why the petition should be
denied or dismissed.
A copy thereof shall be served on the petitioner, and proof
of such service shall be filed with the Court of Appeals.
SECTION 10: DUE COURSE
What bears specific notice in this section is that the
jurisprudential rule that the findings of fact of the court or
agency a quo are binding on the appellate court has now
been made a specific rule of procedure (Regalado,
2008).
This is similar to the rule on the findings of fact of the Court
of Appeals vis-à-vis the Supreme Court on appeal to the
latter, and under appropriate circumstances, the case law
creating exceptions to that rule may very well apply to the
similar provision of this section (Ibid).
SECTION 11: TRANSMITTAL OF RECORD
Transmittal of records
Within fifteen (15) days from notice that the petition has
been given due course, the Court of Appeals may require
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the court or agency concerned to transmit the original or
a legible certified true copy of the entire record of the
proceeding under review.
The record to be transmitted may be abridged by
agreement of all parties to the proceeding. The Court of
Appeals may require or permit subsequent correction of
or addition to the record.
NOTE: The rationale behind the need for the submission
of the certified true copy of the entire record of the
proceeding under review is the fact that the records of the
case will no longer be transmitted to the appellate court.
SECTION 12: EFFECT OF APPEAL
GR: The appeal shall not stay the award, judgment, final order
or resolution sought to be reviewed.
XPN: CA direct otherwise upon such terms as it may deem just.
NOTE: Petitioner must therefore move for the issuance of for
Temporary Restraining Order/Writ of Preliminary Injunction by
the CA.
An appeal of an Ombudsman decision in an administrative case
is not stayed pending appeal to the CA. Based on Sec. 7, Rule
III of the Rules of Procedure of the Office of the Ombudsman,
As amended by Administrative Order No. 17 dated September
15, 2003, it is clear that the OMB’s June 8, 2005 Order imposing
the penalty of removal on the defendant was immediately
executory, notwithstanding the pendency of his appeal (Office
of the Ombudsman v. Valencerina, G.R. No. 178343, July 14,
2014).
SECTION 13: SUBMISSION FOR DECISION
If the petition is given due course, the Court of Appeals may set
the case for oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from notice.
The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or
by the court of Appeals.
RULE 44: ORDINARY APPEALED CASES
These are additional rules governing ordinary appeals
from judgments or final orders of the RTC rendered in the
exercise of appellate jurisdiction.
SECTION 1: TITLE OF CASES
It shall remain to be the title from the court of origin.
However, the person appealing the case shall be referred
to as the appellant while the adverse party shall be called
the appellee.
The evident purpose is to avoid confusion in the identity
of the case on appeal in relation to that which was tried
and decided by the trial court since the party initiating the
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CIVIL PROCEDURE REVIEWER
appeal may not be the principal defendant named in the
court.
SECTION 6: DISPENSING WITH COMPLETE
RECORD
SECTION 2: COUNSEL AND GUARDIANS
Those who were considered as counsels and guardians
ad litem shall still remain to be as such unless others
appear or are appointed. In such cases notice shall be
served immediately and filed with the court.
Where the completion of the record could not be
accomplished within a sufficient period allotted for said
purpose due to insuperable or extremely difficult causes,
the court, on its own motion or on motion of any of the
parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to
decide the issues raised in the appeal, and shall issue an
order explaining the reasons for such declaration.
SECTION 3: ORDER OF TRANSMITTAL OF RECORD
SECTION 7: APPELLANT’S BRIEF
Counsels and Guardians Ad Litem
Transmittal of Record; Importance
Based on the previous rules governing appeal, the
original record or the record on appeal should be
transmitted to the appellate court. This rule gives either
party the right to move for its transmittal within 30 days
after the perfection of appeal.
The receipt of the appellate court of the records is
important since the period to file an appellant’s brief shall
be reckoned from such receipt.
SECTION 4: DOCKETING OF CASE
Upon receiving the original record or the record on appeal
and the accompanying documents and exhibits
transmitted by the lower court, as well as the proof of
payment of the docket and other lawful fees, the clerk of
court of the Court of Appeals shall docket the case and
notify the parties thereof. Within 10 days from receipt of
said notice, the appellant, in appeals by record on appeal,
shall file with the clerk of court 7 clearly legible copies of
the approved record on appeal, together with the proof of
service of 2 copies thereof upon the appellee.
Any unauthorized alteration, omission, or addition in
the approved record on appeal is a ground for
dismissal
The appellant has the duty to file with the court his or her
appellant’s brief as required by Section 7 of Rule 44. It must be
filed 45 days from receipt of the notice by the clerk that the
records have been transmitted, with proof of service to the
appellee.
In civil cases, 45 days to file appellant’s brie; in criminal cases,
30 days to file an appellant’s brief (Vina v. CA, G.R. No. 132936,
February 17, 2003).
GR: Failure to file an appellant’s brief, though not jurisdictional,
results in the abandonment of the appeal and may be a cause
for the dismissal of the appeal (Sibayan vs Costales, G.R. No.
191492, July 4, 2016).
XPN: The period may be relaxed under the following instances:
1. The case involves life, liberty, honor, or property;
2. Counsel’s negligence without any participatory
negligence on the part of the client caused the delay;
3. There are compelling circumstances’
4. There is merit in the case;
5. The cause is not entirely attributable to the fault or
negligence of the party favored by the suspension of
the Rules;
6. There is lack of any showing that the review sought is
merely frivolous and dilatory; and
7. The other party will not be unjustly prejudiced (Cruz v.
CA, G.R. No. 156894, December 2, 2005
Motion to Dismiss Appeal will suspend the running of the
45 day period
Upon motion of the appellee or on the court’s own motion,
any unauthorized alteration, omission, or addition in the
approved record on appeal is a ground for dismissal as
provided for in Section 3 of Rule 44 and Section 1(d) of
Rule 50.
If there is a motion to dismiss appeal filed, the 45 day period to
file an appellant’s brief is suspended as the same would be
unnecessary once the motion is granted (Alonzo v. Rosario,
G.R. No. L-12309, April 30, 1959).
SECTION 5: COMPLETION OF REORD
Within 45 days from the receipt of the appellant’s brief, the
appellee shall also file his own brief, with proof of service
to the appellant.
Where the record of the docketed case is incomplete, the
clerk of court of the Court of Appeals shall so inform said
court and recommend to it measures necessary to
complete the record. It shall be the duty of said court to
take appropriate action towards the completion of the
record within the shortest possible time.
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SECTION 8: APPELLEE’S BRIEF
Failure to file an appellee’s brief will not affect the appeal
(Regalado, 2008).
SECTION 9: APPELLANT’S REPLY BRIEF
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CIVIL PROCEDURE REVIEWER
The appellant, within 20 days from receipt of the
appellee’s brief, may file a reply brief answering points
from the brief filed by the appellee.
However, the reply brief is not mandatory and is only
optional on the part of the appellant.
SECTION 10: TIME FOR FILING MEMORANDA IN
SPECIAL CASES
cause before the court and it is also required that the
motion for extension must be filed before the expiration of
the time to file the brief.
SECTION 13: CONTENTS OF APPELLANT’S BRIEF
The appellant's brief shall contain, in the order herein
indicated, the following:
1.
A subject index of the matter in the brief with a
digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks
and statutes cited with references to the pages
where they are cited;
2.
An assignment of errors intended to be urged,
which errors shall be separately, distinctly and
concisely stated without repetition and numbered
consecutively;
3.
Under the heading "Statement of the Case," a
clear and concise statement of the nature of the
action, a summary of the proceedings, the appealed
rulings and orders of the court, the nature of the
judgment and any other matters necessary to an
understanding of the nature of the controversy with
page references to the record;
4.
Under the heading "Statement of Facts," a clear
and concise statement in a narrative form of the
facts admitted by both parties and of those in
controversy, together with the substance of the
proof relating thereto in sufficient detail to make it
clearly intelligible, with page references to the
record;
5.
A clear and concise statement of the issues of fact
or law to be submitted, to the court for its judgment;
6.
Under the heading "Argument," the appellant's
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
case begins and the page of the report on which the
citation is found;
7.
Under the heading "Relief," a specification of the
order or judgment which the appellant seeks; and
8.
In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a
copy of the judgment or final order appealed
from.
Unlike in normal cases, in cases involving certiorari,
prohibition, mandamus, quo warranto, and habeas
corpus, the parties are required to file a memorandum in
lieu of a brief, 30 days from receipt of the notice by the
clerk. This period shall be non-extendible.
The failure of the appellant to file his memorandum within
the reglementary period may be a ground for dismissal of
the appeal.
Differences between a Brief and Memorandum
Brief
Memorandum
AS TO SCOPE
Ordinary Appeals
Certiorari,
Prohibition,
Mandamus,
Quo
Warranto, and Habeas
Corpus cases
AS TO THE TIME OF FILING
Within 45 days
Within 30 days
AS TO THE CONTENTS
Contents specified by Shorter, briefer, only one
Rules
issue involved. No subject
index or assignment of
errors just facts and law
applicable.
SECTION 11: SEVERAL APPELLANTS OR
APPELLEES OR SEVERAL COUNSEL FOR EACH
PARTY
Where there are several appellants or appellees, each
counsel representing one or more but not all of them shall
be served with only one copy of the briefs.
When several counsels represent one appellant or
appellee, copies of the brief may be served upon any of
them.
SECTION 12: EXTENSION OF TIME FOR FILING
BRIEFS
GR: A motion requesting for an extension of time to file
the briefs is generally not allowed.
XPN: For a movant be allowed to extend the time for filing
his or her brief, he must first show good and sufficient
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Must comply with the requirements of the contents of
the appellant’s brief
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CIVIL PROCEDURE REVIEWER
It is important that the appellant’s brief should contain all
which are enumerated in Section 13 of this Rule. The right
to appeal is a statutory right and may be exercised only in
the manner and in accordance with the provisions of law.
As such, an appealing party must strictly comply with the
requisites laid down in the Rules of Court. Deviations from
the Rules cannot be tolerated. The rationale for this strict
attitude is not difficult to appreciate as the Rules are
designed to facilitate the orderly disposition of appealed
cases. Their observance cannot be left to the whims and
caprices of appellants.
Appeal dismissed as appellant’s brief did not contain
statement of facts and assigned errors (Bucad v. CA,
G.R. No. 93783, December 11, 1992).
The right to appeal is neither a natural right nor a part
of due process; it is merely a statutory privilege, and
may be exercised only in the manner and in accordance
with the provisions of law. Thus, an appealing party
must strictly comply with the requisites laid down in
the Rules of Court (Mendoza v.UCPB, G.R. No.
165575, February 2, 2011).
In this case, the Appellants' Brief of petitioners did not
have a subject index. The index is intended to facilitate
the review of appeals by providing ready reference,
functioning much like a table of contents (Ibid).
Unlike in other jurisdictions, there is no limit on the length
of appeal briefs or appeal memoranda filed before
appellate courts. The danger of this is the very real
possibility that the reviewing tribunal will be swamped with
voluminous documents. This occurs even though the
rules consistently urge the parties to be "brief" or
"concise" in the drafting of pleadings, briefs, and other
papers to be filed in court. The subject index makes
readily available at one's fingertips the subject of the
contents of the brief so that the need to thumb through the
brief page after page to locate a party's arguments, or a
particular citation, or whatever else needs to be found and
considered, is obviated (Ibid).
Moreover, the Appellants' Brief had no assignment of
errors, but petitioners insist that it is embodied in the
"Issues" of the brief. The requirement under Sec. 13,
Rule 44 of the 1997 Rules of Civil Procedure for an
"assignment of errors" in paragraph (b) thereof is different
from a "statement of the issues of fact or law" in
paragraph (e) thereof (Ibid).
An assignment of errors is an enumeration by the
appellant of the errors alleged to have been committed by
the trial court for which he/she seeks to obtain a reversal
of the judgment, while the statement of issues puts forth
the questions of fact or law to be resolved by the appellate
court (Ibid).
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Further, the Court of Appeals found that the Statement of Facts
was not supported by page references to the record. It was held
that: “If a statement of fact is unaccompanied by a page
reference to the record, it may be presumed to be without
support in the record and may be stricken or disregarded
altogether.” (Ibid)
The assignment of errors and page references to the record in
the statement of facts are important in an Appellant's Brief as
the absence thereof is a basis for the dismissal of an appeal
under Section 1 (f), Rule 50, of the 1997 Rules of Civil Procedure
(Ibid).
Assignment of errors
GR: Only errors specifically assigned and properly argued in the
brief will be considered, except errors affecting jurisdiction over
the subject-matter, as well as plain and clerical errors
(Regalado, 2008).
XPNs: These errors may be considered on appeal, even if not
specifically assigned and argued in the brief:
1.
Grounds not assigned as errors but affecting the
jurisdiction over the subject-matter;
2.
Matters not assigned as errors on appeal but are
evidently plain or clerical errors within the
contemplation of law;
3.
Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to
serve the interests of justice or to avoid dispensing
piecemeal justice;
4.
Matters not specifically assigned as errors on appeal
but raised in the trial court and are matters of record
having some bearing on the issue submitted which the
parties failed to raise or which the lower court ignored;
5.
Matters not assigned as errors on appeal but closely
related to an error assigned; and
6.
Matters not assigned as errors on appeal but upon
which the determination of a question properly
assigned is dependent (Catholic Bishop of Balanga
v. CA, et al., G.R. No. 112519, November 14, 1996).
Substantial compliance is not enough
The requirements required by law must be strictly followed as
the right to appeal is a mere statutory privilege.
SECTION 14: CONTENTS OF APPELLEE’S BRIEF
The appellee's brief shall contain, in the order herein
indicated the following:
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CIVIL PROCEDURE REVIEWER
1. A subject index of the matter in the brief with a
digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
2. Under the heading "Statement of Facts," the
appellee shall state that he accepts the statement
of facts in the appellant's brief, or under the
heading "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as
he believes exist in the appellant's statement of
facts with references to the pages of the record in
support thereof, but without repetition of matters
in the appellant's statement of facts; and
3. Under the heading "Argument," the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited by
the page of the report at which the case begins
and the page of the report on which the citation is
found.
An appellee who has not also appealed cannot make
assignments of errors in his brief (Gorospe v.
Penaflorida, G.R. No. L-11583, July 19, 1957) but he
can make a counter-assignment of errors in order to
sustain the judgment (La Campaha Food Products, Inc.
v. PCIB, et al., G.R. L-16405, June 30, 1986).
An appellee, in his brief, can also argue on issues raised
at the trial to sustain the judgment in his favor on other
grounds, even if the same were not included in the
decision of the court a quo nor raised in appellant’s
assignment of errors of arguments. Hence, the appellate
court can affirm a judgment on grounds ignored or
erroneously decided by the lower court (Carillo v. De
Paz, G.R. No. L-22061, October 28, 1966).
The appellee, however, cannot assign such errors to have
the judgment modified for, to do so, he must have
appealed (Aparri v. CA, et al., G.R. No. L-15947, April
30,1965).
SECTION 15: QUESTIONS THAT MAY BE RAISED
ON APPEAL
Whether or not the appellant has filed a motion for new
trial in the court below he may include in his assignment
of errors any question of law or fact that has been raised
in the court below and which is within the issues framed
by the parties.
GR: Parties cannot change their theory on appeal and is
bound by those issues raised and discussed during the
proceedings in the lower court.
There is no dispute that the issue of timeliness of
respondents' Motion to Dismiss petitioners' Amended
Complaint was not raised by petitioners before the RTC.
Neither was this issue raised in their Comment to
respondents' petition for certiorari filed with the CA. It was
only in their Motion for Reconsideration of the CA
Decision that this matter was raised. It is well
established that issues raised for the first time on
appeal and not raised in the proceedings in the lower
court are barred by estoppel. Points of law, theories,
issues, and arguments not brought to the attention of the
trial court ought not to be considered by a reviewing court,
as these cannot be raised for the first time on appeal.
Basic considerations of due process impel the adoption of
this rule (Mercado v. Spouses Espina, G.R. No. 173987,
February 25, 2013).
Moreover, respondent's filing of their Motion to Dismiss
Amended Complaint may not be considered as a
circumvention of the rules of procedure. Under Section 8,
Rule 10 of the Rules of Court, an amended complaint
supersedes an original one. As a consequence, the original
complaint is deemed withdrawn and no longer considered
part of the record. In the present case, the Amended
Complaint is, thus, treated as an entirely new complaint. As
such, respondents had every right to move for the dismissal
of the said Amended Complaint. Were it not for the filing of
the said Motion, respondents would not have been able to
file a petition for certiorari before the CA which, in turn,
rendered the presently assailed judgment in their favor
(Ibid).
CA was correct in dismissing the case as the factual and
legal issues were not presented before the trial court (Del
Rosario v. Bonga, G.R. No. 136308, January 23, 2001).
XPNs: Parties can change their theory on appeal when:
1.
The evidence is already a part of the records or
in other words, when the new theory is already
based on the evidence submitted that ruling
otherwise would result to blatant injustice.
When the evidence is part of the records, one can
change theory as there will be no need to introduce
additional evidence (Lianga Lumber Co. v. Lianga
Timber Co., G.R. No. L-38685, March 31, 1977).
Theory changed since new theory was supported by
evidence on record. The litigants cannot raise an
issue for the first time on appeal, as this would
contravene the basic rules of fair play and justice,
EXCEPT when substantial justice plainly requires,
exempting a particular case from the operation of
technicalities should not be subject to cavil (Sy v.
CA, G.R. No. 127263, April 12, 2000).
Parties cannot change their theory on appeal;
Exceptions
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CIVIL PROCEDURE REVIEWER
2. Lack of jurisdiction over the subject matter
may be raised even on appeal.
Reversal of Judgment on Appeal is binding only on
the parties who appealed
GR: The reversal of a judgement on appeal is generally
binding only on the parties in the appealed case and does
not affect or inure to the benefit of those who did not join
or were made parties to the appeal.
In cases where there are two or more defendants in the
case and only one appealed the judgment imposed upon
them, the reversal of such judgment would only be binding
upon the party who instituted the appeal. As to the other
defendants who did not appeal, the expiration of the
period to appeal would make the judgment final and
executory as to them.
RULE 45: APPEAL BY CERTIORARI TO THE
SUPREME COURT
Procedure for Appeal by Certiorari to the Supreme Court
RTC/Sandiganbayan/CTA en banc/CA renders a
decision
Any party files a verified petition for review on
certiorari within 15 days from notice of final judgment
or order of lower court or notice of denial of motion for
reconsideration or new trial.
XPNs:
1.
Where both parties have commonality of
interests
2.
Where the rights and liabilities of both parties are
so interwoven and dependent on each other as
to be inseparable, in which case, the
modification of the appealed judgment in favor of
appellant operates as a modification to the
respondent/defendant who did not appeal.
In case the liabilities of defendants being
solidary, the above exception applies.
Appellant serves copies of petition on adverse parties
and to the lower court, and the corresponding docket
fees.
SC may dismiss the petition or require the appellee to
comment.
Circumstances indicative of a commonality
in the interests of the parties:
a. Their rights and liabilities originate from
only one source or title;
If given due course, parties may submit memoranda.
b. Homogeneous evidence establishes the
existence of their rights and liabilities;
and
c.
Whatever judgment is rendered in the
case or appeal, their rights and liabilities
will be affected, even if to varying extents
(Maricalum
Mining
Corp.
v.
Remington Industrial, G.R. No. 15833,
February 11, 2008).
In both of these cases, the reversal for one party shall
operate as a reversal to all.
Remedies of defendants who did not appeal when
the judgment has already been executed
If for example, only one defendant appealed the judgment
and such judgment has already been executed as to the
other defendants but the appellate court reversed the
decision of the lower court, the other defendants who did not
appeal and to whom the judgment has been executed may
file a motion for restitution or reparation of damages
under Section 5 of Rule 39
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SC may affirm, reverse, or modify judgment of the
lower court.
SECTION 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.
The above rule was amended by A.M. 07-7-12 SC to include
the Court of Tax Appeals (CTA) in the list of courts from which
an appeal may be taken directly to the SC. The previous mode
of appeal from a CTA decision is to the Court of Appeals
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CIVIL PROCEDURE REVIEWER
through Rule 43. This is no longer the case since the CTA is
of the same rank as the CA according to R.A. 9282.
If the RTC rendered the judgment on its appellate
jurisdiction, in the instances provided for in Articles 42 and
43, the appeal shall be taken to the CA even if only
questions of law are raised by the petitioner.
Grave abuse of discretion is not an allowable ground
under Rule 45 (Republic v. CA, G.R. No. 119393, April
26, 2000).
It is axiomatic that a party who does not appeal or file a
petition for certiorari is not entitled to any affirmative relief.
An appellee who is not an appellant may assign errors in
his brief where his purpose is to maintain the judgment
but ha cannot seek modification or reversal of the
judgment or claim affirmative relief unless he has also
appealed. Thus, for failure of respondent to assail the
validity of her dismissal, such ruling is no longer an issue
(Immaculate Conception Academy v. Camilon, G.R.
No. 188035, July 2, 2014).
The petition for review on certiorari may include an
application for a writ of preliminary injunction or other
provisional remedies. The petitioner may also seek the
same provisional remedies by verified motion filed in the
same action or proceeding at any time during its
pendency (Sec. 1, Rule 45, as amended by A.M. No. 077-12-SC effective December 27, 2007).
Differences between
Questions of Fact
Questions
of
Law
and
QUESTIONS OF LAW
QUESTIONS OF FACT
AS TO CERTAINTY OF FACTS INVOLVED
Material allegations of
fact are not
Doubt or difference as
controverted by either
to the truth or
party; thus, there is
falsehood of facts, or
certainty as to facts.
as to probative value of
The doubt lies on whet
the evidence
law is to be applied on
presented.
certain facts.
AS TO NECESSITY OF EVALUATING EVIDENCE
The appellate court can
The determination of
determine the issue
the issue involves
raised without
evaluation or review of
reviewing or evaluating
evidence.
the evidence.
(Asian Terminals, Inc. v. Simon Enterprises, Inc.,
G.R. No. 177116, February 27, 2013; Leoncio v. De
Vera, G.R. No. 176842, February 18, 2008; Bernaldez
v. Francia, G.R. No. 143929, February 28, 2003)
TEST: 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
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evaluating the evidence. In which case, it is a question
of law; otherwise it is a question of fact (Heirs of
Villanueva v. Heirs of Mendoza, G.R. No. 209132,
June 5, 2017).
If the resolution does not require an evaluation of proof
but on a consideration of the applicable provision of law,
then it involves a question of law (Republic v. CA, G.R.
No. 119393, April 26, 2000).
Only Questions of Law May be Raised in a Petition
for Review
GR: The determination of a factual issue is generally outside
the province of the Supreme Court to determine in a petition
for review.
NOTE: The findings of facts of the trial court, as affirmed on
appeal by the CA, are conclusive on the SC.
XPNs:
1.
When the finding is grounded entirely on
speculations, surmise, or conjecture;
2. When interference made is manifestly absurd,
mistaken, or impossible;
3. When judgment is premised on a misrepresentation
of facts;
4. When there is grave abuse of discretion in the
appreciation of facts;
5. When the findings of fact are conflicting;
6. When the findings of fact are conclusions without
citation of specific evidence on which they are
based;
7. The findings of facts of the CA is premised on the
supposed evidence and is contradicted by the
evidence on record;
8. When the CA in making its findings went beyond the
issues of the case and the same is contrary to both
the admissions of appellants and appellees;
9. When the findings of fact of the CA are at variance
with those of the trial court, the SC has to review the
evidence in order to arrive at the correct findings
based on the record;
10. When certain material facts and circumstances
have been overlooked by the trial court which, if
taken into account, would alter the result of the case
in that they would entitle the accused to acquittal;
and
11. When the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are not
disputed by the respondents (Asian Terminals,
Inc. v. Simon Enterprises, Inc., G.R. No. 177116,
February 27, 2013).
Petition for Review on Certiorari under Rule 45 v.
Certiorari under Rule 65
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CIVIL PROCEDURE REVIEWER
The remedies of appeal in the ordinary course of law and
that of certiorari under Rule 65 of the Revised Rules of
Court are mutually exclusive and not alternative or
cumulative.
PETITION FOR
REVIEW ON
CERTIORARI
RULE 45
SPECIAL CIVIL
ACTION FOR
CERTIORARI
RULE 65
NATURE
1. A mode of appeal 1. A special civil action
which seeks to review
that is an original
final judgments and
action (Rule 65, RoC)
orders (Rule 41, Sec.
directed against an
2, RoC)
interlocutory order or
2. A continuation of the
matters where no
appellate
process
appeal may be taken
over the original case.
from (Rule 41, Sec. 1,
RoC)
2. Not part of the
appellate process, it is
an
independent
action.
PURPOSE
For the correction of For the correction of
errors of law – a mistake errors of jurisdiction
of judgment
ISSUES RAISED
Raises questions of law
Raises
questions
of
jurisdiction
PERIOD OF FILING
Filed within 15 days from Filed not later than 60
notice of judgment, final days from notice of
order
or
resolution judgment,
order
or
appealed from.
resolution sought to be
assailed, or from notice of
denial of an MR or MNT.
SUBJECT MATTER
Only judgments or final An interlocutory order of
orders and those that the the lower court prior to an
Rules
of
Court
so appeal from the judgment;
declared
or where there is no
appeal or any plain,
speedy
or
adequate
remedy.
EFFECT TO JUDGMENT APPEALED/JUDGMENT
SUBJECT OF THE PETITION
Stays
the
judgment Does not
stay the
sought to be appealed
judgment or order subject
of the petition, unless
enjoined or restrained.
NEED FOR A MOTION FOR RECONSIDERATION
Does not require a prior Requires, as a general
motion for reconsideration rule, a prior motion for
reconsideration (Bases
Conversion
and
Development Authority
v. Uy, 506 SCRA 524).
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PARTIES
The parties are the The tribunal, board, or
original parties with the officer exercising judicial
appealing party as the or quasi-judicial functions
petitioner and the adverse is
impleaded
as
party as the respondent, respondent (Rule 65,
without impleading the Sec. 5, RoC)
lower court or its judge
(Rule 45, Sec. 4(a),RoC).
WHERE FILED
Filed with the SC (Rule Filed with the RTC (Sec.
45, Sec. 1, RoC).
21, BP 129);
With the CA (Sec. 9, BP
129); or
With the SC (Article VIII,
Sec.
5(1),
1987
Constitution)
Rule 65 cannot be used as substitute for a lost appeal
(Conejos v. CA, G.R. No. 149473, August 9, 2002).
When a Petition for Certiorari under Rule 65 may be
treated as a Petition for Review under Rule 45
Well-settled is the rule that certiorari will lie only when a court
has acted without or in excess of jurisdiction or with grave
abuse of discretion. As a condition for the filing of a petition
for certiorari, Section 1 of Rule 65 additionally requires that
"no appeal nor any plain, speedy and adequate remedy in
the ordinary course of law" must be available. It is axiomatic
that the availability of the right of appeal precludes recourse
to the special civil action for certiorari.
Such move is in accordance with the liberal spirit
pervading the Rules of Court and in the interest of
substantial justice, especially:
1.
2.
3.
If the petition was filed within the reglementary
period for filing a petition for review;
Errors of judgment are averred; and
There is sufficient reason to justify the relaxation of
the rules.
Besides, it is axiomatic that the nature of an action is
determined by the allegations of the complaint or petition and
the character of the relief sought. The Court explained: It
cannot be claimed that this petition is being used as a
substitute for appeal after that remedy has been lost through
the fault of petitioner. Moreover, stripped of allegations of
'grave abuse of discretion,' the petition actually avers errors
of judgment rather than of jurisdiction, which are the subject
of a petition for review (Oaminal v. Castillo, G.R. No.
152776, October 8, 2003).
SECTION 2: TIME FOR FILING; EXTENSION
Fifteen (15) days from:
1. Notice of the judgment or final order or resolution
appealed from; or
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CIVIL PROCEDURE REVIEWER
2. The denial of the petitioner’s motion for new trial
or reconsideration filed in due time after notice of
judgment.
2.
NOTE: Neypes ruling (Fresh Period Rule) is applicable.
The reglementary period to appeal is 15 days from service
of the judgment, final order or resolution. However, within
that period, the aggrieved party may file a motion for new
trial or reconsideration and, if denied, he shall have the
entire 15 days all over again from notice of such denial
within which to file his petition for review on certiorari in
the Supreme Court (Regalado, 2008).
3.
The general rule is that a final and executory judgment
can no longer be disturbed, altered, or modified in any
respect, and that nothing further can be done but to
execute it. A final and executory decision may, however,
be invalidated via a Petition for Relief or a Petition to
Annul the same under Rules 38 or 47, respectively, of the
Rules of Court (Genato Investments, Inc. v. Barrientos,
G.R. No. 207443, July 23, 2014).
5.
Extension for thirty (30) days, provided the petition
was filed:
1.
2.
3.
4.
5.
6.
For justifiable reasons;
On motion duly filed and served;
Full payment of the docket fees;
Payment of other lawful fees;
Deposit of costs; and
Filed before the expiration of the reglementary
period.
NOTE: Filing of the motion for extension must be done
within the period to file the petition itself, and it must be
accompanied with the payment of the required fees.
SECTION 3: DOCKET AND OTHER LAWFUL FEES;
PROOF OF SERVICE
Petitioner shall pay the following fees at the time of the
filing of the petition:
1.
2.
3.
The petition shall be filed in eighteen (18) legible copies, with
the original copy intended for the court being indicated as
such.
The Court has allowed the consideration of other
grounds not raised as errors specifically in the following
instances:
1.
2.
3.
4.
5.
6.
Docket fees;
Other lawful fees to the clerk of the Supreme Court;
Deposit costs amounting to P500.
Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition.
RULE 45, SECTION 4
CONTENTS OF PETITION
1.
4.
Full name of the appealing party as the petitioner
and the adverse party as respondent, without
impleading the lower courts or judges;
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Indicate the material dates
a. When notice of the subject judgment or
final order or resolution was received;
b. When
motion
for
new
trial
or
reconsideration, if any, was filed; and
c. Notice of denial was received
Concise statement of the matters involved, and the
reasons or arguments relied on.
Clearly legible duplicate original , or a certified copy
of the judgment or final order or resolution certified
by the clerk of the court a quo, and the requisite
number of plain copies, and such material portions
of the record as would support the petition; and
Sworn certification against forum shopping.
Ground not assigned as errors, but affecting
jurisdiction over the subject matter;
Matters not assigned as errors on appeal but are
evidently plain or clerical errors within the
contemplation of law;
Matters not assigned as errors on appeal, but
consideration of which is necessary in arriving at a
just decision and complete resolution to serve the
interest of justice or to avoid dispensing piecemeal
justice;
Matters not specifically assigned as errors on
appeal, but raised in the trial court and are matters
of record having some bearing on the issue
submitted which the parties failed to raise or which
the lower court ignored;
Matters not assigned as errors on appeal, but
closely related to an error assigned; and
Matters not assigned as errors on appeal, but upon
which the determination if a question properly
assigned is dependent (Heirs of Yabao v. Paz
Lentejas Van Der Kolk, G.R. No. 207266, June 25,
2014).
SECTION 5: DISMISSAL OR DENIAL OF PETITION
1.
2.
3.
Failure to pay the required docket fee, other lawful
fees, and deposit of costs;
Failure to provide a proof of service of the petition
on the lower court concerned and on the adverse
party;
Failure to comply with the required contents of and
the documents which should accompany the petition
(Rule 45, Sec. 5, RoC).
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CIVIL PROCEDURE REVIEWER
SECTION 8: DUE COURSE; ELEVATION OF
RECORDS
Motu Proprio dismissal by the Supreme Court
When the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised are to
unsubstantial to require consideration.
GR: A party cannot raise for the first time on appeal issues
or theories which he could have raised timely before the
trial court.
If the petition is given due course, the Supreme Court
may require the elevation of the:
1.
2.
Complete record of the case, or
Specified parts thereof within 15 days from notice.
SECTION 9: RULE APPLICABLE TO BOTH CIVIL
AND CRIMINAL CASES
XPNs:
1. New issue raised does not nrequire the
presentation of new evidence (Lianga Lumber
Co. v. Lianga Timber Co., G.R. No. 169314,
March 14, 2008);
2. New issue raised is necessarily included in the
issues already presented (Sy v. CA, G.R. No.
127263, April 12, 2000).
The mode of appeal under Rule 45 shall be applicable to
both civil and criminal cases.
XPN: Criminal cases where the penalty imposed is:
1.
2.
3.
RULE 46: ORIGINAL CASES
SECTION 1: TITLE OF CASES
SECTION 6: REVIEW DISCRETIONARY
A review is not a matter of right, but of sound discretion.
Review is granted only when there are special and
important reasons.
The following measures must be
consideration in exercising discretion:
taken
Death
Reclusion perpetua
Life imprisonment.
into
1. Court a quo has decided a question of substance,
not 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
2. Court a quo has departed from the accepted and
usual course of judicial proceedings, or
sanctioned such departure by a lower court, as to
call for an exercise of the power of supervision.
NOTE: In case of penalty of death or reclusion perpetua,
an appeal is a matter of right leaving the reviewing court
without any discretion (Riano, 2016).
In all cases originally filed in the Court of Appeals, the
party instituting the action shall be called the petitioner
and the opposing party the respondent.
SECTION 2: TO WHAT ACTIONS APPLICABLE
What are original cases?
1.
2.
3.
4.
The CA then can be a court of original jurisdiction, and not
just an appellate court.
SECTION 3: CONTENTS AND FILING OF PETITION;
EFFECT OF NON-COMPLIANCE WITH
REQUIREMENTS
The petition shall contain:
SECTION 7: PLEADINGS AND DOCUMENTS THAT
MAY BE REQUIRED; SANCTIONS
1.
To determine whether the petition should be dismissed,
denied, or given due course, the Supreme Court may require
or allow the filing of such pleadings, briefs, memoranda or
documents as it may deem necessary within such periods.
2.
3.
4.
5.
The Supreme Court may also impose the corresponding
sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or non-compliance with the
conditions.
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Certiorari
Mandamus
Prohibition
Quo warranto
Full names and actual addresses of all petitioners and
respondents;
Concise statement of the matters involved;
Factual background of the case;
Grounds relied upon for the relief prayed for;
In actions filed under Rule 65, indicate the material
dates showing:
a. When notice of judgment or final order or
resolution was received;
b. When a motion for new trial or
reconsideration, if any, was filed; and
c. When notice of denial thereof was received.
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CIVIL PROCEDURE REVIEWER
Requirements:
1. Filed in seven (7) legible copies, with proof of
service on the respondent;
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment or final order
or resolution;
3. Certificate of non-forum shopping;
4. Payment of docket and other lawful fees; and
The Court of Appeals cannot acquire jurisdiction
over the subject matter unless docket fees are
paid. Failure to pay docket fees is a ground to
dismiss the petition (Mendoza v. CA, G.R. No.
148505, February 20, 2007).
5. Deposit the amount of P500
Failure to comply with the foregoing requirements shall be
sufficient ground for the dismissal of the petition.
It bears stressing that procedural rules are not to be
belittled or dismissed simply because their nonobservance may have prejudiced a party’s substantive
rights. Like all rules, they are required to be followed
except only for the most persuasive of reasons when they
may be relaxed. Not one of these exceptions is present
here (Mendoza v. CA, G.R. No. 148505, February 20,
2007).
Substantial Compliance Rule
Rule 46 applies to actions for certiorari filed in the Court
of Appeals but Rule 65 generally supplements the same.
Mere duplicate originals are sufficient under Rule 46 even
if Rule 65 requires only certified true copies (Republic v.
Carmel Dev’t, Inc., G.R. No. 142572, February 20,
2002).
Neypes rule does not apply when the admin agency has
its own rules of procedures (Zapanta vs Co King Ki, G.R.
No. 191694, December 3, 2014).
SECTION 4: JURISDICTION OVER PERSON OF
RESPONDENT, HOW ACQUIRED
Jurisdiction is acquired:
1. Over the petitioner – By filing of the petition
2. Over the respondent – By service to him of its
order or resolution indication its initial action on
the petition or by his voluntary submission.
NOTE: The reason for this is that, aside from the
fact that no summons or other coercive process
is served on the respondent, his response to the
petition will depend on the initial action of the
court thereon (Regalado, 2008).
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A certiorari petition is an initiatory action, the copy of the
petition must be served to the party and not to the
counsel. However, in practice, you would just serve it to
the counsel (Reicon Realty Builders Corporation v.
Diamond Drageon Realty and Management, G.R. No.
204796, February 4, 2015).
In Rule 65 petitions, jurisdiction is acquired by the service
upon the respondent of the order to comment. This is the
first step that the Court of Appeals will do when a petition
for certiorari is filed before it.
SECTION 5: ACTION BY COURT
The court may:
1. Dismiss the petition outright with specific reasons
for such dismissal; or
NOTE: The court may dismiss the petition
outright, hence no reaction is expected from the
respondent and, under the policy adopted in this
Rule, he is not deemed to have been brought
within the court’s jurisdiction until after service on
him of the dismissal order or resolution
(Regalado, 2008).
2. Require the respondent to file a comment on the
same within 10 days from notice.
NOTE: Only pleading required by the court shall be
allowed. All other pleadings and papers may be filed only
with leave of court.
SECTION 6: DETERMINATION OF FACTUAL ISSUES
For the resolution of factual issues raised in original
petitions, the Court of Appeals is granted the options
provided by this section:
1. Court itself may conduct hearings thereon; or
2. Delegate the reception of the evidence on such
issues to any of its members or to an appropriate
court, agency, or office.
CA in its capacity to conduct hearings in Original
Actions
The Court of Appeals is a court where you can adduce
evidence, whether in the exercise of original or appellate
jurisdiction. The Court of Appeals in effect is a trier of facts.
Court of Appeals acting on its original jurisdiction, in a
petition for mandamus has the authority to receive evidence
on damages (Vital-Gozon v. CA, G.R. No. 129132, July 8,
1998).
How hearings in original actions are being done
A sitting justice can be delegated to receive the evidence.
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CIVIL PROCEDURE REVIEWER
SECTION 7: EFFECT OF FAILURE TO FILE
COMMENT
When no comment is filed by any of the respondents, the
case may be decided on the basis of the record, without
prejudice to any disciplinary action which the court may
take against the disobedient party.
No declaration of default in original cases filed in the
CA
Respondent cannot be declared in default for non-filing of
comment. Case will be decided on the basis of record,
without prejudice to any disciplinary action which the court
may take against the disobedient party.
On the other hand, where the court believes, either in the
interest of substantial justice, or that the case could be
justly resolved only with revelatory data which may be
obtained from the respondent, or that his counsel is not
acting with due diligence or competence in protecting the
respondent’s interest, it may require the submission of
such comment under pain of sanction for indirect
contempt (Regalado, 2008).
RULE 47: ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
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 the RTC. As plainly provided for in the
provision, this means that you are not allowed to file a
Rule 47 petition against a decision rendered by the RTC
in criminal cases.
Rule 47 does not apply to an action to annul the levy
and sale at public auction. Neither does it apply to an
action to annul a writ of execution because a writ of
execution is not a final order or resolution, but is issued to
carry out the mandate of the court in the enforcement of
a final order or of a judgment. It is a judicial process to
enforce a final order or judgment against the losing party
(Mejia-Espinoza v. Cariño, G.R. No. 193397, January
25, 2017).
RTC does not have the jurisdiction to annul a DARAB
decision. Under the law, they are co-equal (Springfield
Dev’t Corp. v. Hon. Presiding Judge, G.R. No. 142628,
February 6, 2007).
The remedy cannot be resorted to when the RTC
judgment being questioned was rendered in a
criminal case. The 2000 Revised Rules of Criminal
Procedure itself does not permit such recourse, for it
excluded Rule 47 from the enumeration of the provisions
of the 1997 Revised Rules of Civil Procedure which have
suppletory application to criminal cases. There is no basis
in law or the rules, therefore, to extend the scope of Rule
47 to criminal cases. When there is no law or rule
providing for this remedy, recourse to it cannot be allowed
(Llamas v. CA, G.R. No. 149588, September 29, 2009).
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Rule 47 is a remedy granted only under exceptional
circumstances where a party, without fault on his part, has
failed to avail of the ordinary remedy or appropriate
remedies. It is a condition sine qua non that one must have
failed to move for MNT, appeal, or file a petition for relief from
judgment. Petitioner must cite justification for Rule 47 (RP v.
Sps. De Castro, G.R. No. 189724, February 7, 2011;
Genato Investments, Inc. v. Barrientos, G.R. No. 207443,
July 23, 2014).
A Rule 47 petition cannot be filed when failure to file a
Motion for New trial, Petition for Relief from Judgment (Rule
38) or other appropriate remedies IS ATTRIBUTABLE to the
fault of the petitioner, if it is not attributable, a Rule 47 petition
may be filed.
It is clear then that to set aside a final and executory
judgment, there are three remedies available to a litigant:
first, a petition for relief from judgment under Rule 38 of the
Rules of Court on the grounds of fraud, accident, mistake,
and excusable negligence filed within sixty (60) days from
the rime petitioner learns of the judgment but not more than
six (6) months from the entry thereof;
second, a direct action to annul judgment on the ground of
extrinsic fraud; and third, a direct action for certiorari or
collateral attack to annual a judgment that is void upon its fac
or void by virtue of its own recitals (Arcelona v. CA, G.R.
No. 102900, October 2, 1997).
Owing to the extraordinary nature and objective of the
remedy of annulment of judgment or final order, there are
requirements that must be complied with before the
remedy is granted. First, the remedy is only available when
the petitioner can no longer resort to the ordinary remedies
of new trial, appeal, petition for relief, or other appropriate
remedies through no fault of the petitioner. Second, the
ground for the remedy is limited to either extrinsic fraud or
lack of jurisdiction (although lack of due process has been
cited as a ground by jurisprudence) Third, the time for
availing the remedy is set by the rules: if based on extrinsic
fraud, it must be filed within four years from the discovery of
extrinsic fraud; if based on lack of jurisdiction, it must be
brought before it is barred by laches or estoppel. Fourth, the
petition should be verified and should allege with particularity
the facts and law relied upon, and those supporting the
petitioner's good and substantial cause of action or defense
(Encarnacion v. Johnson, G.R. No. 192285, July 11,2018;
Mejia-Espinoza v. Cariño, G.R. No. 193397, January 25,
2017).
As the petitioner, when you are afforded the right to question
while the case was in the lower courts and you DID NOT
question it, your inaction to question will mean that you will
no longer be afforded the petition of Rule 47 because you
were not able to avail it when you could have.
Annulment of Judgment
It is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. The judgment
may be annulled on the ground of extrinsic or collateral fraud.
A person who is not a party to the judgment may sue for its
annulment provided he can prove that the same was obtained
through fraud or collusion and that he would be adversely
affected thereby. An action for annulment of judgment may be
availed of even if the judgment to be annulled had already been
fully executed or implemented (Islamic Da'Wah Council of the
Phil. v. CA, et al., G.R. No. 80892, Sept. 29, 1989).
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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 in any action or proceeding whenever it is invoked,
unless barred by laches (Ancheta v. Ancheta, G.R. No.
145370, March 4, 2004).
SECTION 2: GROUNDS
The following are the grounds for annulment:
1. Extrinsic Fraud or Collateral Fraud
A judgment otherwise final may be annulled not only on
the ground of extrinsic fraud but also because of lack of
jurisdiction of the court which rendered it. Consequently,
the decision may be attacked any time, since the court
rendering the decision has not acquired jurisdiction
(Demetriou v. CA, G.R. No. 115595, November 14,
1994).
This 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
(Sibal v. Buquel, G.R. No. 197825, January 11,
2016).
Petitioner questions the propriety if the notice sent to the
deputized counsel of the OSG, arguing that notice to its
deputized counsel is not notice to the OSG. Hence,
absent such notice, the decision of the RTC did not
become final and executory. Moreover, the failure of the
RTC to serve the OSG copies of legal notices, orders,
and judicial processes constitutes lack of due process.
SC disagrees. It should be stressed that in a petition for
annulment of judgment based on lack of jurisdiction,
petitioner must show not merely an abuse of
jurisdictional discretion, but an absolute lack of
jurisdiction. Whether through indevertence or
negligence of its deputized counsel or the OSG itself, the
decision has already become final and executory
(Republic v. Technological Advicates for AgroForest Programs Associations, Inc., G.R. No.
165333, February 9, 2010).
Extrinsic fraud exists when there is a fraudulent act
committed by the prevailing party outside of the trial
of the case, whereby the defeated party was
prevented from presenting fully his side of the case
by fraud or deception practiced on him by the
prevailing party. The overriding consideration when
extrinsic fraud is alleged is that the fraudulent scheme
of the prevailing litigant prevented a party from having
his day in court (Ramos v. Combong, Jr., G.R. No.
144273, October 20, 2005; Demetriou v. CA, G.R.
No. 115595, November 14, 1994).
Petitioner must explain why he failed to avail the
remedies of appeal, MNT, MR, or petition for relief of
judgment in order to avid abuse of the remedy under
Rule 47 (Ancheta v. Ancheta, G.R. No. 145370,
March 4, 2004).
Since petitioner claimed that there was extrinsic fraud
committed by respondent bank's counsel, she could
have filed a petition for relief under Rule 38 within the
period provided for by the Rules of Court, but she did
not. Section 2, Rule 47 clearly states that extrinsic
fraud shall not be a valid ground for annulment of
order if it was availed of, or could have been
availed of, in a motion for new trial or petition for
relief. Thus, extrinsic fraud is effectively barred if it
could have been raised as a ground in an available
remedial measure (Spouses Arcenas v. Queen City
Development Bank, G.R. No. 166818, June 16,
2010).
2.
Lack of Jurisdiction
In a case where a petition for the 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
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3.
Denial of Due Process
Although Section 2 of Rule 47 of the Rules of Court
provides that annulment of a final judgment or order of
the RTC may be based “only on the grounds of extrinsic
fraud and lack of jurisdiction,” jurisprudence recognizes
as additional ground therefor denial of due process
(Intestate Estate of the Late Nimfa Sian v. PNB, G.R.
No. 168882, January 31, 2007).
Q: Can a person who is not a party to the case file a Rule 47
petition?
A: Yes, especially if he is an indispensable party. Before he
can file the petition, he must prove that the grounds for
annulment are present.
SECTION 3: PERIOD FOR FILING ACTION
If based on EXTRINSIC FRAUD:
4 years from its discovery.
Section 3 of Rule 47 lays down the period to bring an
action for annulment of judgment based on extrinsic fraud;
within 4 years from its discovery. Petitioners should
have filed an annulment of judgment based on extrinsic
fraud within four years from discovery of the alleged
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CIVIL PROCEDURE REVIEWER
fraudulent acts committed by private respondents. The
petition must show that the Petition for Annulment was
filed on time. Otherwise, the court may dismiss it (Ramos
v. Combong, Jr., G.R. No. 144273, October 20, 2005).
If based on LACK OF JURISDICTION:
Before it is barred by laches or estoppel.
adversely affected by a decision in the civil action or
proceeding cannot bring an action for annulment of
judgment under Rule 47 of the Rules of Court. The
exception is if he is a successor in interest by title
subsequent to the commencement of the action, or if the
action or proceeding is in rem, in which case the judgment
is binding against him (Encarnacion v. Johnson, G.R.
No. 192285, July 11,2018).
Laches
SECTION 5: ACTION BY THE COURT
It is an inexcusable delay in the assertion of rights or
failure to prosecute a claim, within a reasonable and
proper period, which warrants the presumption that a
party has waived his right.
SECTION 4: FILING AND CONTENTS OF PETITION
1. Verified petition alleging therein:
a. With particularity the facts and the law
relied upon for annulment, 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
cause of action or defense; and
5. Certificate of non-forum shopping.
If no substantial merit in the petition is found, the Court
may DISMISS the petition.
Under Section 5, Rule 47 of the Rules of Court, it is
incumbent that when a court finds no substantial merit in
a petition for annulment of judgment, it may dismiss the
petition outright but the "specific reasons for such dismissal"
shall be clearly set out as it is an extraordinary remedy that
is equitable in character and is permitted only in exceptional
cases. In this case, the dismissal through technical grounds
by the CA of the Petition for Annulment of Judgment
exceeded the bounds of its jurisdiction (Spouses Alvarez v.
CA, G.R. No. 192472, June 3, 2019).
Rule 47 allows the that Court of Appeals may dismiss the
petition outright as in special civil actions but unlike in special
civil action or in original cases where an Order to Comment
is sufficient for the court to acquire jurisdiction over the
respondent, the rule requires the issuance of summons
should prima facie merit be found and the same is due
course.
If prima facie merit exists, then the same shall be GIVEN
DUE COURSE.
Where a judgment has long been final and executory and in
the absence that the party has not been deprived of due
process, or that the said judgment was procured by extrinsic
or collateral fraud, the judgment cannot be set aside.
SECTION 6: PROCEDURE
A person who is not a party in the original case may file a
petition under Rule 47 (Anuran v. Aquino, G.R. No.
12397, April 2, 1918).
One need not be a party to the judgment sought to be
annulled. What is essential is that it can prove his
allegation that the judgment obtained by the use of fraud
and collusion and it would be adversely affected thereby.
Even where there was no fraud and collusion, however
this Court allowed parties to file petitions for annulment of
judgment to question precisely their non-inclusion as
parties to the original case (Intestate Estate of the Late
Nimfa Sian v. PNB, G.R. No. 168882, January 31,
2007).
The proper party to file a petition for annulment of
judgment or final order need not be a party to the
judgment sought to be annulled. A person not
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The procedure in ordinary civil case shall be observed.
The reception of evidence may be referred to a member of
the court or judge of RTC should a trial be necessary.
The initial stages of court action when an annulment of
judgement is filed:
1.
2.
Preliminary evaluation of the merit;
Service of summons similar to ordinary civil actions
Rule 47 may be availed of even if the decision had been
fully implemented.
Q: Will the action for annulment of judgment stay the
execution of the decision assailed?
A: No. The decision is already executory.
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CIVIL PROCEDURE REVIEWER
Q: What is your remedy to stay the execution?
A: The action for annulment should be accompanied
with TRO of writ of preliminary injunction. A writ of
preliminary injunction may be issued to prevent execution.
The reception of evidence may not be referred to the RTC
judge whose action without jurisdiction or was
involved in extrinsic fraud.
EXAMPLE: There was extrinsic fraud because the judge
connived with the other party. Common sense will tell us
that the CA will not refer the reception of evidence to that
same judge who was accused of having connived with the
other party.
The reception of evidence may be referred to the RTC
judge in case of extrinsic fraud, if the said judge is not
involved in the extrinsic fraud. RTC may receive
evidence, but the decision will be by the CA.
Q: Can petition for annulment of judgment assail a judicial
compromise agreement (immediately executory)?
A: No, because the proper remedy is motion to set aside
the judgment and the compromise agreement. Appeal the
denial. It is just a motion, not the petition for annulment
under Rule 47.
SECTION 7: EFFECT OF JUDGMENT
The reason for such annulment was because of lack of
jurisdiction over the defendant, the action may be refiled in
the same original court provided it had jurisdiction over the
subject-matter and is the court of proper venue or no issue
on venue is raised.
Annulment on the ground of extrinsic fraud committed
by the offending party
Where the judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court may on motion,
order the trial court to try the case as if a timely motion for
new trial had been granted therein.
On motion of the prevailing party on justifiable grounds, he
may be allowed to no longer refile the action and the trial
court which rendered the questioned judgment shall be
ordered to try the case anew as if a timely motion for new
trail had been granted therein.
The difference lies in the fact that its original judgment was
not tainted by jurisdictional defects, but by deception which
resulted in prejudicial errors therein.
Note that Rule 47 results in three different scenarios
after annulment:
1.
2.
Q: What is the effect if petition for annulment is granted?
A: It depends on which ground the decision was set
aside. If the ground is lack of jurisdiction, and the decision
assailed is set aside, an original action may be refiled.
The petitioner is allowed to refile the case. If the ground
is extrinsic fraud, and the decision assailed is set aside,
the court may, upon motion, order a new trial, as if a timely
motion for new trial was filed.
Annulment on the ground of lack of jurisdiction
A judgment of annulment shall set aside the questioned
judgment or final order or resolution and render the same
null and void (if petition to annul was granted), without
prejudice to the original action being refiled in the proper
court.
Lack of jurisdiction over the subject matter
This may involve a different court of competent
jurisdiction in the instance where the judgment in the
original action is annulled because the court which
rendered the same had no jurisdiction over the subject
matter.
Lack of jurisdiction over the defendant
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3.
Annulled because the court has no jurisdiction
over the subject matter – remedy is to refile to the
proper court;
Annulled because the indispensable party was not
impleaded, therefore there is lack of jurisdiction
over the person of the defendant – remedy is that
the action will be refiled in the same original court,
provided that it has jurisdiction over the subject
matter and there is no issue as to venue; and
Annulled because a prevailing party committed
extrinsic fraud – it will be treated as if a motion for
new trial was timely filed.
SECTION 8: SUSPENSION OF PRESCRIPTIVE
PERIOD
Q: The prescription period of action for a breach of written
contract is 10 years. AA filed the petition on the 9th year. After
five years, the case reached a decision. AA filed a petition for
annulment, and it took two years to reach a decision. Seven
years after the filing of the case, there was a petition for
annulment. Can AA still file it?
A: Yes. Technically the prescriptive period for the refiling of the
original action shall be deemed suspended from the filing of
such original action until the finality of judgment of annulment.
Filed on the 9th year, so technically A still has more or less two
years within which to file.
Extrinsic fraud attributable to the plaintiff in the original
action
If the extrinsic fraud which resulted in the annulment of judgment
of the trial court is attributable to the plaintiff in the original action,
the suspension of the prescriptive period authorized in this
section will not apply.
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CIVIL PROCEDURE REVIEWER
For purposes of computing the prescriptive period
within which the same original action may be refiled
as authorized in the next preceding section:
1. The prescriptive period provided by law for such
type of action must first be considered.
2. From that period, set aside the length of time
which transpired from the date when the action
was originally filed in the trial court up to the
finality of the judgment which eventually annulled
the questioned judgment of that trial court.
3. The remaining period of the prescriptive period
(prescriptive period provided by law deducted by
the time when the original action was filed) may
then be availed of by the aggrieved party for the
refiling of the same action.
EXAMPLE: AA has ten years within which to file an action
(2000 – 2010) AA filed on January 2, 2009 (technically AA
has almost two years left to file) RTC rendered a decision
after five years (2015) AA discovered extrinsic fraud and
AA filed a petition on annulment on 2017. CA granted
AA’s petition on ground of lack of jurisprudence over the
subject matter on 2019. Technically, AA still has almost
two years within which to refile the action.
But if the action was fraud committed by the plaintiff, there
is no suspension of the running of the period. That means,
there is a chance that the plaintiff cannot file if the
proceedings extend. He will not be able to profit from his
own fraudulent misdoing.
SECTION 9: RELIEF AVAILABLE
Orders of restitution or reparation of damages are authorized
to be issued by the trial court where an executed judgment
is reversed totally or partially or annulled on appeal or
otherwise.
Judgment may include award of damages, attorney’s fees
and other relief. This is consistent with the principle that the
CA can receive evidence even in the exercise of its original
jurisdiction.
Judgments or final orders that have already been executed
may be the subject of a petition for annulment of judgment.
If judgment already executed, the court may issue Orders of
Restitution or other relief as justice and equity may warrant.
If restitution can no longer be effected
If restitution can no longer be effected, the relief may be in
the form of compensation under the same formula suggested
in Po Pauco v. Tan Juco (G.R. No. 24996, Sept. 4, 1926).
SECTION 10: ANNULMENT OF JUDGMENTS OF
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.
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RULE 48: PRELIMINARY CONFERENCE
Nature of preliminary conference
When you talk about Rules 48 to 56, these are procedures either
in the CA or SC.
Under Rule 48, Preliminary Conference is the same as the pretrial conference in the lower court.
It can be availed of in the exercise of CA’s original jurisdiction or
appellate jurisdiction. The preliminary conference can also be
availed of in the CA because the latter is also a trier of facts.
It is the CA who will call for a preliminary conference. At most,
the parties can only file a motion moving for the preliminary
conference. It is not a matter of right.
RULE 49: ORAL ARGUMENT
The CA, upon the motion of a party, may move for oral
arguments. Unless authorized by the Court, only one counsel
may argue for a party.
Oral Arguments
The CA may call for it, or the parties may file a motion.
Unless authorized by the court, only one counsel may argue
for the party.
Unlike the procedure in the lower courts, when filing a motion,
you do not put a notice of hearing. But the rules provide that
the adverse party may file his objection at least five days from
service of the said motion. The hearing therefore on the motion
is discretionary.
DIFFERENCE BETWEEN THE MOTIONS FILED IN
THE CA OR SC AND THE MOTIONS FILED IN THE
TRIAL COURTS.
In the trial courts, motions must include notice of hearing;
but in the CA, there is no need for notice of hearing
because hearing on the motions is greatly discretionary
on the part of the court.
RULE 50: DISMISSAL OF APPEAL
SECTION 1: GROUNDS FOR THE DISMISSAL OF
APPEAL
Grounds for the Dismissal of Appeal; Their nature
Note that the grounds for the dismissal of an appeal are
directory, not mandatory. It is not ministerial on the part
of the court to dismiss the appeal. The enumeration listed
in Section 1 is not exclusive, because there are other
grounds when appeal may be dismissed:
1. By agreement of the parties, the parties can move
for the dismissal of the appeal
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CIVIL PROCEDURE REVIEWER
2. Where the appeal has been rendered moot and
academic.
The SC will no longer remand the petition in case of
improper appeal, SC will just dismiss the case. And the
dismissal is fatal. Wrong mode of appeal would mean that
the decision becomes final and executory.
Withdrawal of an Appeal
As a matter of right - anytime before the filing of the
appellee’s brief; but once the appellee’s brief has been
filed, then it becomes by way of motion.
Payment of docket fees for perfection of appeal
In this case, it was held that the non-payment of docket
fees and other fees within the period is mandatory for the
perfection of the appeal. Otherwise, the right to appeal is
lost. This is because the court acquires jurisdiction over
the subject matter:
1. if the appeal is filed within the reglementary
period
2. payment of docket fees must be made within the
reglementary period. When the docket fees in the
appellate court is not paid in full within the
reglementary period, the decision of the trial court
becomes final and executory and therefore
becomes immutable and no longer susceptible to
the appeal. Once a decision has attained finality,
not even the SC—as a general rule—can change
the decision (D.M. Wenceslao and Associates
vs. City of Parañaque City Assessor, G.R. No.
170728, August 31, 2011).
Trial Court has no Authority to Dismiss the Appeal
The power of the RTC to dismiss the appeal is limited only in
the instances specified in Rule 50, Section 1.
These two instances are the following, to wit:
1.
2.
It was filed out of time
docket fee was not paid.
If it is a wrong remedy, it is not for the RTC to say it. It is for
the appellate court to say it.
2.
Failure to pay the docket fees.
RULE 51: JUDGMENT
SECTION 1: WHEN A CASE IS DEEMED SUBMITTED
FOR JUDGMENT
In ordinary Appeals
1. When no hearing on the merits of the main case is
held:
Upon the filing of the last pleading, brief, or
memorandum required by the Rules or the Court;
or
The expiration of the period for filing (Sec. 1 [a],
Rule 51, RoC).
2. When a hearing is held
Upon its termination;
Upon the filing of the last pleading or
memorandum as required or permitted by the
court; or
The expiration of the period for its filing (Sec. 1
[a], Rule 51, RoC).
In original actions and petitions for review:
1.
2.
3.
Where no comment is filed:
Upon the expiration of the period to comment.
(Sec. 1 [b], Rule 51, RoC)
Where no hearing is held:
Upon the filing of the last pleading required or
permitted to be filed by the court; or
The expiration of the period for its filing (Sec. 1 [b],
Rule 51, RoC).
Where a hearing on the merits of the main case is held:
Upon its termination;
Upon the filing of the last pleading or
memorandum required or permitted by the court;
or
The expiration of the period for its filing (Sec. 1 [b],
Rule 51, RoC).
SECTION 2: BY WHOME RENDERED
Rendition of Judgment
Judgment shall be rendered by the members of the court
who participated in the deliberation of the case before its
assignment to a member for the writing of the decision (Sec.
2, Rule 51, RoC).
SECTION 3: QUORUM AND VOTING IN THE COURT
Q: Can the RTC dismiss it?
A: No. In Philippine Bank vs CA (G.R. No. 218901,
February 15, 2017), there are only two (2) instances where
the RTC can dismiss the appeal outright:
1.
Failure to file the NOA within the reglementary
period; and
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Quorum and voting in the court
Participation of all three justices of a division shall be
necessary at the deliberation and a unanimous votes of
the three justices shall be required for the
pronouncement of a judgment or final resolution.
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If the unanimous vote is not reached (Sec. 3, Rule 51,
RoC):
• The clerk shall enter the votes of the dissenting
justice in the record.
Thereafter, the Chairman of the division shall refer the
case, together with the minutes of the deliberation, to the
Presiding Justice:
who shall designate two Justices chosen by raffle from
among all the other members of the court to sit
temporarily with them, forming a special division of five
Justices.
The participation of all the five members of the special
division shall be necessary for the deliberation required
in Sec. 2, Rule 51 of the Rules of Court.
The concurrence of a majority of such division shall be
required for the pronouncement of a judgment or final
resolution.
NOTE: To be binding, aa judgment must be duly signed
and promulgated during the incumbency of the judge or
justice who signed it.
SECTION 4: DISPOSITION OF A CASE
Disposition of the case
The CA, in the exercise of its appellate jurisdiction (Sec. 4,
Rule 51, RoC):
• May affirm, reverse, modify the judgment or final
order appealed from, and
• May direct a new trial or further proceeding to be
had.
When the CA directs a new trial or further
proceedings, the case shall either be:
a. remanded to a trial court; or
b. the CA can receive evidence and perform
all acts necessary to resolve factual issues.
This can be exercised in cases falling within the
court’s original jurisdiction and/or falling within
the court’s appellate jurisdiction wherein a
Motion for New Trial is bases only on the ground
of a newly discovered evidence.
SECTION 5: FORM OF DECISION
Form of Decision
Every decision or final resolution of the court in appealed
cases shall clearly and distinctly state the findings of fact and
the conclusions of law on which it is based, which (Sec. 5,
Rule 51, RoC):
• may be contained in the decision or final resolution
itself,
• or adopted from those set forth in the decision,
order, or resolution appealed from.
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SECTION 6: HARMLESS ERROR RULE IN APPEALS
Harmless Errors
No error in either the admission or the exclusion of evidence
and no error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside, modifying,
or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with
substantial justice (Sec. 6, Rule 51, RoC).
The court at every stage of the proceeding must disregard
any error or defect which does not affect the substantial
rights of the parties (Sec. 6, Rule 51, RoC).
SECTION 7: JUDGMENT WHERE THERE ARE
SEVERAL PARTIES
Judgment where there are several parties
In all actions or proceedings, an appealed judgment may
be affirmed as to some of the appellants, and reversed as to
others, and the case shall thereafter be proceeded with, so
far as necessary, as if separate actions had been begun and
prosecuted, and execution of the judgment of affirmance
may be had accordingly, and costs may be adjudged in such
cases, as the court shall deem proper (Sec. 7, Rule 51,
RoC).
SECTION 8: QUESTIONS THAT MAY BE DECIDED
GR: Only errors claimed and assigned by a party shall be
considered by the court (Sec. 8, Rule 51, RoC).
XPN:
1. Errors affecting its jurisdiction over the subject
matter;
2. Errors affecting the validity of the judgment
appealed from or the proceedings therein; and
3. Errors closely related to or dependent on the
assigned error and properly argued in the brief.
Q: Vivian Lee filed a complaint against Philippine Hawk
Corporation (PHC) for damages based on quasi-delict,
arising from a vehicular accident which resulted in the
death of her husband, Silvino Tan, and caused her
physical injuries. PHC denied liability, alleging that the
immediate and proximate cause of the accident was the
recklessness or lack of caution of Silvino. In the RTC, the
parties agreed to the following facts: that Vivian and
Silvino, while on board a motorcycle driven by the latter,
and a Metro Bus driven by Margarito Avila, employee of
PHC, were involved in an accident. As a result, Silvino
died on the spot, while Vivian suffered physical injuries
which necessitated medical attention and hospitalization.
The RTC held PHC liable for failing to exercise the
diligence of a good father of the family in the selection and
supervision of Avila, the bus driver, having failed to
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CIVIL PROCEDURE REVIEWER
sufficiently inculcate in him discipline and correct behavior
on the road. CA affirmed the decision of the trial court with
modification in the award of damages. PHC filed a petition
for review arguing that since it was the only one that
appealed the decision of the RTC, the CA erred in
awarding other kinds of damages in favor of Vivian. Did
the CA erred in awarding other kinds of damages in favor
of Vivian Tan Lee, who did not appeal from the trial court’s
decision?
A: No. The rule is settled that the findings of the trial court,
especially when affirmed by the CA, are conclusive on the
SC when supported by the evidence on the record. The
Court carefully reviewed the records of the case and
found no cogent reason to disturb the finding of the trial
court.
Sec. 8, Rule 51 of the Rules of Court provides that “no
error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in
the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in
the brief, save as the court pass upon plain errors and
clerical errors.” (Philippine Hawk Corporation vs.
Vivian Tan Lee, G.R. No. 166869, 16 February 2010).
SECTION 9: PROMULGATION AND NOTICE OF
JUDGMENT
Promulgation and Notice of Judgment
After the judgment or final resolution or separate opinions,
if any are signed by the justices taking part.
They shall be delivered for filing to the clerk, who shall
indicate the date of promulgation, and cause true copies
to be served upon the parties (Sec. 9, Rule 51, RoC).
NOTE: A decision must not only be signed by the Justices
who took part in the deliberation, but it must also be
promulgated to be considered as a Decision
(Limkaichong v. COMELEC, G.R. No. 178831-32, 30
July 2009).
SECTION 10: ENTRY OF JUDGMENT AND FINAL
RESOLUTIONS
Entry of Judgment and Final Resolutions
If no appeal or motion for new trial or reconsideration is
filed within the time provided in these Rules, the judgment
or final resolution shall forthwith be entered by the clerk in
the book of entries of judgments (Sec. 10, Rule 51, RoC).
- The date when the judgment or final resolution
becomes executory shall be deemed as the date
of its entry.
- The record shall contain the dispositive part of the
judgment or final resolution and shall be signed
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by the clerk, with a certificate that such judgment
or final resolution has become final and
executory.
NOTE: The date of entry is important for purposes of the
execution of judgment.
Requirement of entry of judgment
Q: Is an entry of judgment required before a writ of execution
can be issued?
A: Yes. An entry of judgment is generally required before a
writ of execution could be issued.
Sec. 1, Rule 39 of the Rules of Court provides that before
a writ of execution could be issued, the judgment obligee
must first apply for execution with the court of origin and with
notice to the adverse party. Together with the motion, the
judgment obligee must submit certified true copies of the
judgment or judgments or final order or orders sought to be
enforced and the entry of such judgment or final order.
However, there is an exception. Sec. 11, Rule 51 of the
Rules of Court provides where the judgment or final order
or resolution, or a portion thereof is ordered to be
immediately executory, an entry of judgment is no longer
necessary (Natalia Realty vs. CA and Antonio Martinez et.
al, G.R. No. 126462, 12 November 2002).
SECTION 11: EXECUTION OF JUDGMENT
Execution of Judgment
The motion for execution of judgment may be only filed in the
proper court after its entry, except where the judgment or
final order is ordered to be immediately executory (Sec. 11,
Rule 51, RoC).
In original actions in the CA, the Writ of Execution shall
be accompanied by:
A certified true copy of the entry of judgment, and
addressed to any appropriate officer for its enforcement.
In appealed cases, where the motion for execution
pending appeal is filed in the CA at a time that it is in
possession of the original record or the record on
appeal:
The resolution granting such motion shall be transmitted to
the lower court from which the case originated, together with
a certified true copy of the judgment or final order to be
executed, with a directive for such court of origin to issue the
proper writ for its enforcement.
RULE 52: MOTION FOR RECONSIDERATION
SECTION 1: PERIOD OF FILING
Period of Filing
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CIVIL PROCEDURE REVIEWER
Within 15 days from notice of the decision, with proof of
service to the other party (Sec. 1, Rule 52, RoC)
and before the Court of Appeals loses jurisdiction over the
case (Sec. 1, Rule 53, RoC).
SECTION 2: SECOND MOTION FOR
RECONSIDERATION
NOTE: The CA loses jurisdiction when the period within which
to file a MNT had already lapsed or when you appeal it to the
SC and the SC took cognizance - you cannot file a MNT
anymore.
Second Motion for Reconsideration
The rule prohibit a second motion for reconsideration by
the same party (Sec. 2, Rule 52, RoC).
SECTION 3: RESOLUTION OF THE MOTION
Resolution of the Motion
Within 90 days from the date the CA declares it submitted
for resolution, which is normally upon the filing of the last
pleading required by the Rules or by the Court.
The time limit applies only to MR in the CA. It does not
apply to MR in SC, pursuant to the exception in Sec. 2(b),
Rule 56 (Sec. 3, Rule 52, RoC).
SECTION 4: STAY OF EXECUTION
Stay of Execution
The pendency of a motion for reconsideration filed on time
and by the proper party shall stay the execution of the
judgment or final resolution sought to be reconsidered,
unless the court, for good reasons, shall otherwise direct
(Sec. 4, Rule 52, RoC).
NOTE: When you file a motion for reconsideration, that
MR will not be heard as if you have oral arguments. It is
either the court will ask you to appear for oral arguments
or you can file a motion - the resolution of which will
depend upon the discretion of the Court of Appeals.
If your MR is denied, apply the Neypes Rule. If you want
to appeal it, you have a fresh period within which to file
your petition for review under Rule 45.
RULE 53: MOTION FOR NEW TRIAL
You can file a Motion for New Trial before the Court of
Appeals, but not before the Supreme Court.
The only ground is newly discovered evidence which could
not have been discovered prior to the trial in the court below by
the exercise of due diligence and of such character as
would probably alter the results thereof.
NOTE: The Rules of Court allow only two occasions when a
party may file a MNT on the ground of newly discovered
evidence. (1) filed with the trial court under Rule 37 or with the
CA under Rule 53 but NEVER with the SC.
The SC is NOT a trier of facts. It is not the function of this Court
to analyze or weigh all over again the evidence already
considered in proceedings below, its jurisdiction being limited to
reviewing only errors of law that may have been committed by
the lower courts. Such review does not extend to reversing the
factual findings of such courts save only in the exceptional cases
(Navarra v. CA, 204 SCRA 850).
NOTE: MNT must be accompanied by affidavits showing the
facts constituting the grounds therefor and the newly discovered
evidence.
SECTION 2: HEARING AND ORDER
Hearing and Order
Taking of further testimonies may be done orally or by
depositions, with notice to both parties (Sec. 2, Rule 53,
RoC).
SECTION 3: RESOLUTION OF THE MOTION
Resolution of the Motion
90 days from the date the CA declares it submitted for
resolution (Sec. 3, Rule 53, RoC).
SECTION 4: PROCEDURE IN NEW TRIAL
Procedure in New Trial
NOTE: As a general rule, one cannot file a motion for
new trial before the SC, but only before the RTC and the
CA.
The CA shall have the power to try cases and conduct
hearings, receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the
power to grant and conduct new trial or further proceedings
(Sec. 4, Rule 53, RoC).
SECTION 1: PERIOD FOR FILING; GROUND
RULE 54: INTERNAL BUSINESS
Period for Filing
Filing of a Motion for New Trial is at any time after the
perfection of the appeal from the decision of the lower court
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SECTION 1: DISTRIBUTION OF CASES
AMONG DIVISIONS
Distribution of cases among divisions
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CIVIL PROCEDURE REVIEWER
All the cases of the Court of Appeals shall be allotted
among the different divisions thereof for hearing and
decision (Sec. 1, Rule 54, RoC).
Court of Appeals en banc shall make proper orders or
rules to govern the following:
1. Allotment of cases among the different
divisions,
2. The constitution of such divisions,
3. The regular rotation of Justices among them,
4. The filing of vacancies occurring therein, and
5. Other matters relating to the business of the
court;
SECTION 2: PREPARATION OF OPINIONS
FOR PUBLICATION
Duties of the reporter
The reporter shall prepare and publish with each reported
judgment and final resolution:
1.
2.
3.
4.
5.
Such rules shall continue in force until repealed or altered
by the Supreme Court.
SECETION 3: GENERAL MAKE-UP OF
VOLUMES
SECTION 2: QUORUM OF THE COURT
SESSIONS OF A
DIVISION
WHAT CONSTITUTE A QUORUM?
Majority of the actual
Three members shall
members of the court
constitute a quorum
shall constitute
a quorum.
VOTES NECESSARY
Affirmative votes of the Affirmative votes of
majority of the
three members of a
members present shall division shall be
be necessary to pass a necessary for the
resolution.
pronouncement of a
judgment or final
resolution, which shall
be reached in
consultation before the
writing of the opinion
by any member of the
division.
SESSIONS EN BANC
RULE 55: PUBLICATIONS OF JUDGMENTS AND
FINAL RESOLUTIONS
SECTION 1: PUBLICATION
Publication of judgments and final resolutions of the court
1.
2.
3.
4.
Shall be published in the Official Gazette and in the
Reports officially authorized by the court;
In the language in which they have been originally
written;
Together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof; and
Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and
published in the Official Gazette and the authorized
reports (Sec. 1, Rule 55, RoC).
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A concise synopsis of the facts necessary for a clear
understanding of the case;
The names of counsel;
The material and controverted points involved,
The authorities cited therein; and
A syllabus which shall be confined to points of law
(Sec. 2, Rule 55, RoC).
Philippine Reports
These are the published decisions and final resolutions of
the Supreme Court.
Court of Appeals Reports
These are the published decisions and final resolutions of
the Court of Appeals.
Contents of each volume
1. Table of the cases reported and the cases cited
in the opinions,
2. Complete alphabetical index of the subject
matters of the volume.
General make-up of each volume
1.
2.
3.
4.
It shall consist of not less than 700 pages;
Printed upon good paper,
Well bound;
Numbered consecutively in the order of the
volumes published
PROCEDURE IN THE SUPREME COURT
RULE 56: ORIGINAL / APPEALED CASES
ADMINISTRATIVE ORDERS
A.M. No. 10-3-7-SC (Re: proposed rules on E-filing)
When you file a pleading before the SC, it must be
accompanied by a disc or a flash drive.
A.M. No. 11-9-4-SC (Re: Rule for the efficient use of
paper)
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CIVIL PROCEDURE REVIEWER
There are measurements: single-spaced, 14
SECTION 1: ORIGINAL CASES COGNIZABLE
Original cases cognizable
1.
2.
3.
4.
5.
6.
Petitions for Certiorari
Petitions for Prohibition
Petition for Mandamus
Petition for Quo-Warranto
Petition for Habeas Corpus
Disciplinary proceeding against members of the
judiciary and attorneys, and
7. Cases affecting ambassadors, other public
ministers and consuls may be filed originally in
the Supreme Court.
NOTE: Even RTC and CA have concurrent jurisdiction
with these cases. But please do not forget the Hierarchy
of Courts rule.
Provisions dealing strictly with appealed cases in the CA
are not applicable.
SC cannot decide on a MNT based on newly discovered
evidence because it cannot entertain motions based on
questions of fact.
SECTION 2: RULES APPLICABLE
CA Rules that are applicable to the SC
1.
2.
3.
4.
5.
Rule 46 Original Actions in the CA
Rule 48 Preliminary Conference
Rule 49 Hearings on Oral Arguments
Rule 51 Judgment
Rule 52 Motion for Reconsideration
SECTION 3: MODE OF APPEAL
Mode of Appeal
An appeal with the SC may be taken only via Petition for
Review on Certiorari except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
The appeal should be governed by and disposed of in
accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to
11 of Rule 51, 52, and this Rule.
SECTION 4: PROCEDURE
Grounds for Dismissal of Appeal
The appeal before the SC may be dismissed motu proprio or on
a motion by the respondent for the following grounds:
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1.
Failure to take an appeal within the reglementary
period
Lack of merit
Failure to pay the requisite docket fees and other
lawful fees
Failure to comply with the requirements of proof of
service
Error on the choice of the mode of appeal
2.
3.
4.
5.
WHEN IT IS NOTICE OF APPEAL
1.
2.
3.
4.
5.
6.
7.
8.
9.
MTC à RTC
RTC acting on its original jurisdiction to the CA
No certificate of non-forum shopping needed
Title: Appellant vs Appellee
Period to appeal: 30 days (for cases involving
multiple appeals)
As a general rule: Stays the execution, but there
are exceptions
You cannot extend your period to file Notice of
Appeal (same with Rules 42,43,45)
Based on mixed questions of fact and law
Records are elevated to the appellate court
NOTE: The notice of appeal is filed with the court of origin.
Docket fees are also paid at the court of origin.
PETITION FOR REVIEW (RULES 42, 43,45):
1.
You file the petition with the appellate court, you
pay the docket fee with the appellate court
2. Certificate of non-forum shopping is required
3. Title: Petitioner vs Respondent
4. Period to file: 15 days regardless of the nature of
the action
5. Rule 42 - stayed execution except those decided
under the Rules of Summary Procedure.
6. Rule 43 - the appeal to the CA, as a general rule, is
not stayed .
7. Rules 42, 43 - based on mixed questions of fact or
law or both.
8. Rule 45 - always questions of law.
9. You can file a motion in the reglementary period and
upon payment of the filing fee a motion for extension
of time to file the physical petition. But you have to
do it within the reglementary period
10. Records are not elevated unless required by the
appellate court.
11. When you file a petition for review, you have to copy
furnish even the courts below and of course with the
adverse party.
Except as provided therefor in Section 3, rule 122, regarding
appeals in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, an appeal
taken to the SC by notice of appeal shall be dismissed.
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Because the proper mode is Rule 45 and there are no factual
issues.
If the original action commenced in the SC, if the opinion
is equally divided, the petition will be dismissed. If the
opinion of the court is equally divided, the decision on
appeal is affirmed. On all incidental matters, the petition
or motion shall be denied.
Q: You have an adverse decision from the SC, can you
file a Motion for Reconsideration with the prayer that it
should be heard by the SC En Banc?
A: No. The SC will decide whether that case will be heard
by the en banc or not.
Where the court en banc is equally divided in opinion, or the
necessary majority cannot be had, the cases shall again be
deliberated upon, and if after such deliberation no decision is
reached, the original action commenced in the court shall be
dismissed; in appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied. (Sec. 7, Rule 56, RoC).
A.M. NO. 10-3-7-SC
PROPOSED RULES ON E-FILING
Guidelines on submission and processing of soft
copies of Supreme Court-bound papers pursuant to
the efficient use of paper rule
1.
CASES DECIDED BY THE SC EN BANC
In the case of Firestone Ceramics, Inc. vs. CA (334 SCRA
465), the MR was referred to En Banc. Under SC Circular
No. 2-89 (February 7, 1989, as amended by the Resolution
of November 18, 1993), the following are considered en banc
cases:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Cases where it involves the constitutionality or
validity of any treaty, international or executive
agreement, law, executive order, or Presidential
Decree, proclamation, order, instruction, ordinance,
or regulation in question;
Criminal cases especially when the appealed
decision involves death;
Cases raising novel questions of law;
Cases involving ambassadors, other public
ministers and consuls;
Cases involving the CSC, COMELEC and COA;
Cases where the penalty is one of dismissal of a
judge, officer of the judiciary, disbarment of a
lawyer;
Cases where a doctrine or principle will now have to
be modified or reversed;
Cases assigned in a division in which the opinion of
at least three (3) members thereof merit the
attention of the court en banc; and
All other cases of the court en banc by vote of
majority may be deemed of sufficient importance to
merit its attention.
Q: If the Supreme Court en banc is equally divided in
opinion covering an original action, the case shall be:
a) Re-raffled to a division.
b) Original action shall be dismissed.
c) The judgment appealed from shall be official.
d) Again deliberated upon.
A: b) Original actions shall be dismissed.
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2.
3.
4.
5.
6.
Soft copies of all SC-bound papers and their
annexes must be submitted simultaneously with the
hard copy if by CD or within 24 hours from the filing
of the hard copy if by e-mail. It must be understood,
however, that the paper shall be deemed to have
been filed on the date and time of filing of the hard
copy and not the soft copy.
The soft g must be in PDF and individually saved,
as well as individually attached to the e-mail, if
applicable. The filename of the soft copy must be
the same as the document title.
Soft copies must be addressed to the appropriate
docketing office. E-mail address are provided by the
Notice of Resolution.
The docketing offices have the primary
responsibility of ensuring that all SC-bound papers
have the corresponding soft copies. They shall also
be responsible for the safekeeping and archiving of
the CDs.
The e-mail shall use the prescribed format:
A CD or an e-mail shall contain only electronic
documents pertaining to one case. In the same
manner, all soft copies of SC-bound papers and
their annexes pertaining to the same case shall
be saved in one CD or attached to one e-mail. In
case the total file size of the electronic document
exceeds the maximum size of the CD or the
maximum size allowed for uploading by the e-mail
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service being used by the filer, the electronic
documents may be saved in different CDs or emailed in batches, but must be clearly marked
and/or follow the format prescribed above.
7.
The filer shall also attach to the CD or the e-mail a
verified declaration that the pleading and annexes
submitted electronically are complete and true
copies of the printed document and annexes filed
with the SC.
8.
Only designated personnel of the concerned
docketing office shall have authority to open the CD
or access the e-mail. This is to ensure that the
security and confidentiality of electronicallysubmitted documents, which may include internal
memoranda, are not compromised.
9.
Aforesaid designated personnel shall upload a copy
of the electronic document to the primary back-up,
and then, transmit the electronic document to the
division to which the case or matter is assigned.
Justices, Offices of the Clerks of Court, OCA, JRO,
OBC and OAS-SC.
15. The MISO shall set up a similar system for cases
and matters of the Presidential Electoral Tribunal.
A.M. NO. 11-9-4-SC
PROPOSED RULE FOR EFFICIENT USE OF PAPER
Format and Style
All pleadings, motions and similar papers intended for the
court and quasi-judicial body’s consideration and action
(court-bound papers) shall be written:
1. In single space with one-and-a-half space between
paragraphs;
2. Using an easily readable font style of the party’s
choice, of 14-size font; and
3. on a 13-inch by 8.5-inch white bond paper (Sec. 3,
par. 1, Rule 56, RoC).
Who shall comply?
1.
10. The said division shall create folders for each case
(case folder) and subfolders for each pleading,
motion or similar paper transmitted to it by the
docketing office (document subfolder), provided that
the annexes shall be contained in the same
subfolder as the pleading, motion or similar paper to
which they are annexed.
11. The case folder must be named according to the
docket number, while the document subfolder must
be named according to the title of the document and
the date of filing.
12. After creating the appropriate folder and/or
subfolder, the said division shall upload the same to
the e-filing network. At this point, only the said
division may add, delete or move files or folders in
the e-filing network.
13. In case of consolidation of case, the division
concerned shall create a new folder containing all
the consolidated cased, and this new folder shall be
named according to the docket number of the
controlling case.
In case of deconsolidation of cases, the division
concerned shall deconsolidate the case folders
accordingly.
14. Authorized users from the following offices may
view and download such electronic documents in
the e-filing network which concern their office of
division: Offices of the Chief Justice and Associate
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2.
All decisions, resolutions and orders issued by
courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court
Similarly covered are the reports submitted to the
courts and transcripts of stenographic notes (Sec.
3, par. 2, Rule 56, RoC).
Margin and Prints
The parties shall maintain the following margins on all courtbound papers:
1.
2.
3.
4.
A left hand margin of 1.5 inches from the edge;
An upper margin of 1.2 inches from the edge;
A right hand margin of 1.0 inch from the edge; and
A lower margin of 1.0 inch from the edge (Sec. 4,
Rule 56, RoC).
Every page must be consecutively numbered.
Copies to be Filed
Unless otherwise directed by the court, the number of
court-bound papers that a party is required or desires to
file shall be as follows:
1. In the Supreme Court, one original (properly
marked) and four copies, unless the case is
referred to the Court En Banc, in which event, the
parties shall file ten additional copies.
For the En Banc, the parties need to submit only
two sets of annexes, one attached to the original
and an extra copy.
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For the Division, the parties need to submit also
two sets of annexes, one attached to the original
and an extra copy. All members of the Court shall
share the extra copies of annexes in the interest
of economy of paper.
Annexes Served on Adverse Party
Parties to cases before the Supreme Court are
further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their
court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
email to the Court’s e-mail address or by compact
disc (CD). This requirement is in preparation for
the eventual establishment of an e-filing
paperless system in the judiciary.
In the event a party requests a set of the annexes actually
filed with the court, the part who filed the paper shall
comply with the request within five days from receipt (Sec.
6, Rule 56, RoC).
2. In the Court of Appeals and the
Sandiganbayan, one original (properly marked)
and two copies with their annexes;
3. In the Court of Tax Appeals, one original
(properly marked) and two copies with annexes.
On appeal to the En Banc, one Original (properly
marked) and eight copies with annexes; and
5. In other courts, one original (properly marked)
with the stated annexes attached to it (Sec. 5,
Rule 56, RoC).
Summary of Copies to be Filed
Supreme Court
Court-bound papers
- 1 original, properly marked + 4 copies
- En Banc: 1 original + 10 copies
Annexes
- En Banc: 2 sets – attached to original and
copy
- Division: 2 sets – attached to original and
copy
Court of Appeals and Sandiganbayan
- 1 original, properly marked + 2 copies with
annexes
Court of Tax Appeals
- 1 original, properly marked + 2 copies with
annexes
- En Banc: 1 original, properly marked + 8 copies
with annexes
Other courts
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-
1 original, properly marked + annexes attached
A party required by the rules to serve a copy of his courtbound on the adverse party need not enclose copies of
those annexes that based on the record of the court such
party already has in his possession.
PROVISIONAL REMEDIES
These are:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
Nature of Provisional Remedies
Provisional Remedies are temporary measures made
available during the pendency of the action by a litigant to
protect his interests and rights for the purpose of the ultimate
effects of a final judgment.
GR: Inferior courts can grant all appropriate provisional
remedies provided that the main action is in their jurisdiction.
XPN: Support Pendente Lite-- the main action of which only
lies with the Regional Trial Court acting as a family court.
When can Provisional Remedies be availed
Preliminary Attachment and Preliminary Injunction may be
availed of at any stage but before the entry of final judgment.
Receivership may be availed of at any stage of the action or
proceeding even after the final judgment to preserve the
property involved. The bond will be fixed by such court.
Residual Jurisdiction applies for as long as the records are
still with the trial court.
Replevin must be availed before the defendant files his
answer.
Support Pendente Lite may be sought at any stage, even for
the first time on appeal.
RULE 57: PRELIMINARY ATTACHMENT
Attachment is defined as a provisional remedy by which
the property of an adverse party is taken into legal
custody, either at the commencement of an action or at
any time thereafter, as a security for the satisfaction of
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any judgment that may be recovered by the plaintiff or any
proper party.
Preliminary attachment itself cannot be the subject of a
separate action independent of the principal action
because the attachment is only an incident to such action.
NOTE: A writ of preliminary attachment is a provisional
remedy issued by a court where an action is pending. A
writ of preliminary attachment allows the levy of a property
which shall then be held by the sheriff. This property will
stand as security for the satisfaction of the judgment that
the court may render in favor of the attaching party
(Tsuneishi Heavy Industries vs. MIS Maritime Corp.,
G.R. No. 193572, Apr. 4, 2018).
Nature of proceeding
Grounds for the issuance of a writ of preliminary
attachment
1.
NOTE: It is very important that there must be evidence
that the party to be sued is about to depart the
Philippines with intent to defraud his creditors.
2.
3.
Preliminary attachment is a proceeding quasi in rem
although sometimes referred to as an action in rem.
It is an action against a particular property.
4.
Preliminary attachment is discretionary
There is nothing in the Rule 57 which indicates that the
grant of a writ of preliminary attachment is a matter of right
on the part of the applicant. The grant of the remedy is
addressed to judicial discretion to be exercised in
accordance with the requirements of the applicable rules.
Purpose of Preliminary Attachment
First, to seize the property of the debtor in advance of a
final judgment and hold it for purposes of satisfying the
said judgment.
This so that when you win the case, the property is
already attached to avoid further inconvenience. Before
you apply for the writ of preliminary attachment, you must
have a ground. The complaint itself may include already
the Application for the Issuance of a Writ of Preliminary
Attachment together with the relevant affidavit.
Second, to enable the court to acquire jurisdiction over the
action by actual or constructive seizure of the property in
those instances where personal service of summons on
the defendant cannot be effected.
For example, there is an in personam case, and the
defendant is not a resident of the Philippines and cannot be
found in the Philippines, such case then affects his property.
The in personam case can be converted to a quasi in rem
case. This is done by attaching the property of the said
defendant who is not found in the Philippines and is not a
resident thereof. Its effect will be the court acquiring
jurisdiction over the action.
SECTION 1: GROUNDS UPON WHICH ATTACHMENT
MAY ISSUE
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Recovery of a specified amount of money or damages
against a party who is about to depart from the
Philippines with the intent to defraud his creditors.
Action for money or property embezzled or fraudulently
misapplied or converted to his own use by an officer in
the course of his employment or for a willful violation of
duty.
Recovery of property unjustly or fraudulently taken,
detained or converted, when the property, or any part
thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by applicant or
authorized person.
Action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon
which the action is brought, or in the performance
thereof
NOTE: Fraud should be committed upon contracting the
obligation sued upon (Foundation Specialist, Inc. v.
Betonval Ready Concrete, Inc., G.R. No. 170674,
August 24, 2009).
5.
6.
Action against a party who has removed or disposed of
his property, or is about to do so, with intent to defraud
his creditors.
Action against a party who does not reside and is not
found in the Philippines, or on whom summons may be
served by publication.
NOTE: Attachment will only issue when there is a showing
of fraud. It must be stated with particularity. Insolvency is not
a ground for issuance of a writ of preliminary attachment.
The action must be for recovery of specified sums, other than
moral or exemplary damages. Grounds may be alleged in the
verified complaint or in a separate application for the
purpose.
When the judgment is final and executory, do not ask for a
writ of preliminary attachment. Ask for a writ of execution.
Writ of preliminary attachment may be issued ex parte.
Properties which are exempted from attachment are also
exempted from writ of preliminary attachment.
Notice and Hearing
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A writ of preliminary attachment may issue upon motion
and notice of hearing, by the court in which the action is
pending and may even be issued by the CA or the SC.
NOTE: There is nothing in the Rules of Court which
makes notice and hearing indispensable and mandatory
for the issuance of a writ of attachment. It is simply the
duty of the court to ensure that the writ is issued on
concrete and specific grounds and not on general
averments. (Uy v. CA, 215 SCRA 859)
If not applied for at the commencement of the action, the
application may be made after the service of summons
upon the defendant and may even be made at any stage
of the proceedings, even after judgment, but before its
entry. Since at this stage, the defendant has already been
summoned to the action, an application for the issuance
of an order of attachment would entail notice to the
defendant.
SECTION 2: ISSUANCE AND CONTENTS OF ORDER
Family home, exempted from a writ of preliminary
attachment
Issuance and Contents of Order
Q: Is a family home in Forbes Park exempted from a
writ of preliminary attachment?
If either ex-parte or upon motion with notice and hearing
by the court in which the action is pending.
A: As a general rule, a family home is exempted from
a writ of preliminary attachment. However, in the
Family Code, an urban home exceeding the amount of
P300,000 upon its constitution is not considered as a
family home.
It may be he ard ex parte (an exception to the general rule
that motions are supposed to be heard).
Preliminary attachment
Q: X sued Y for moral damages because of the latter’s
act that besmirched his reputation and made him
suffer sleepless nights. Can X ask the court for a Writ
of Preliminary Attachment?
A: No, because one can only ask for a Writ of Preliminary
Attachment only on liquidated damages other than moral
and exemplary on a cause of action arising from law,
contract, quasi-contract, delict, and quasi-delict against a
party who is about to depart from the Philippines with
intent to defraud his creditors.
Who may avail
The plaintiff or any proper party may have the property of
the adverse party attached. It is not only the plaintiff who
may apply for the issuance of a writ of preliminary
attachment. Proper party may refer to the counterclaimant, cross-claimant or third-party claimant.
Q: Who can avail of a writ of preliminary attachment?
A: Any party to the case can avail.
When Preliminary Attachment may be applied
An order and writ of preliminary attachment may be
applied for (a) at the commencement of the action or (b)
at any time before entry of judgment.
If it is applied for at the commencement of the action, the
application may be incorporated in a verified complaint.
An application at this stage will result in an ex parte
issuance of the writ of preliminary attachment.
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SECTION 3: AFFIDAVIT AND BOND REQUIRED
Requisites for the issuance of an order of Preliminary
Attachment
An order of attachment shall be granted only upon the filing
of affidavit and bond. These must be duly filed with the court
before the order of the attachment is issued.
Aside from the affidavit executed, the party applying for an
order of preliminary attachment must post a bont di the
amount fixed by the court and executed to the adverse party.
This is called an attachment bond.
NOTE: The rule does not require a hearing because the writ
of attachment may be issued ex parte.
Content of the affidavit
1.
2.
3.
4.
Sufficient cause of action exists;
The case is one of those mentioned in Sec. 1 of Rule
57;
That there is no other sufficient security for the claim
sought to be enforced by the action; and
That the amount due to the applicant, or the value
of the property the possession of which he is entitled
to recover, is as much as the sum for which the
order is granted above all legal counterclaims.
SECTION 4: CONDITION OF APPLICANT’S BOND
Condition of Applicant’s Bond
The bond executed in favor of the adverse party is
conditioned upon the payment, by the party applying for an
order of attachment, of all costs which the adverse party may
be adjudged as entitled to and all damages which he may
sustain by reason of the attachment, if it shall be finally
adjudged that the party applying for attachment was not
entitled thereto. (Rule 57, Sec. 4, RoC)
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Stages in the grant of Preliminary Attachment
1. The court issues the order granting the
application.
2. The writ of attachment issues pursuant to the
order granting the writ.
3. The writ is implemented.
NOTE: The court must have acquired jurisdiction over the
person of the defendant when the writ is to be
implemented.
No levy on attachment pursuant to the writ of preliminary
attachment shall be enforced unless it is preceded or
contemporaneously accompanied, by the service of
summons, together with a copy of the complaint, the
application for attachment, the applicant’s affidavit and
bond and the order and writ of attachment, on the
defendant within the Philippines.
NOTE: 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.
(Mangila v. CA, 387 SCRA 150)
SECTION 7: ATTACHMENT OF REAL AND
PERSONAL PROPERTY
Attachment of Real and Personal Property
1. Real property, or growing crops thereon, or any interest
therein, standing upon the record of the registry of deeds of
the province in the name of the party against whom
attachment is issued, or not appearing at all upon such
records, or belonging to the party against whom attachment
is issued and held by any other person, or standing on the
records of the registry of deeds in the name of any other
person:
-
By filing with the registry of deeds:
a. A copy of the order;
b. A description of the property attached; and
c. A notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached.
-
By leaving a copy of such order, description, and
notice with the occupant of the property, if any, or
with such other person or his agent if found within
the province
GR: The sheriff is not allowed to make a levy on
attachment if such levy is not preceded or
contemporaneously accompanied by the above
mentioned documents.
XPN: The rule on prior or contemporaneous service of
summons shall not apply in the following:
1. The summons could not be served personally
despite diligent efforts.
2. The summons could not be served by substituted
service despite diligent efforts.
3. The defendant is a resident of the Philippines
temporarily absent therefrom.
4. The defendant is a non-resident of the
Philippines.
5. The action is one in rem or quasi in rem.
SECTION 5: MANNER OF ATTACHING PROPERTY
Manner of attaching property
GR: The sheriff enforcing the writ shall, without delay and
with all reasonable diligence. attach, to await judgment and
execution of an action, only so much of the property in the
Philippines of the party against whom the writ is issued, not
exempt from execution, as may be sufficient to satisfy the
applicant’s demand.
XPN: The adverse party makes a deposit with the court from
which the writ is issued, or gives a counter-bong executed to
the applicant, in an amount equal to the bond fixed by the
court in the order of the attachment or to the value of the
property to be attached, exclusive of costs. (Rule 57, Sec. 5,
RoC)
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Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration
Decree, the notice shall contain a reference to the number of
the certificate of title, the volume and page in the registration
book where the certificate is registered, and the register
owner or owners thereof.
2. Personal property capable of manual delivery
By the sheriff taking and safely keeping it in his
custody, after issuing the corresponding receipt.
3. Stocks, shares or interest in stocks or shares of any
corporation or company
-
By leaving with the president or managing agent
thereof:
a. A copy of the writ; and
b. A notice stating that the stock or interest of the
party against whom the attachment is issued
is attached in pursuance of such writ.
4. Debts and credits, bank deposits, financial interests,
royalties, commission and other personal property not
capable of manual delivery
By leaving with the person owing debts or having in
his possession and control, such credits or other
personal property, or with his agent:
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CIVIL PROCEDURE REVIEWER
a.
b.
A copy of the writ; and
A notice that the debts owed by him to the
party against whom the attachment is
issued and the credits and other personal
property in his possession, or under his
control, belonging to said party, are
attached in pursuance of such writ.
claim of such heir, legatee, or devisee, or any person
claiming under him. (Rule 57, Sec. 9, RoC)
6. Property in custodia legis
A copy of the writ of attachment shall be filed with
the proper court or quasi-judicial agency.
A notice of the attachment shall be served upon the
custodian of such property.
SECTION 8: EFFECT OF ATTACHMENT OF DEBTS,
CREDITS, AND ALL OTHER SIMILAR PERSONAL
PROPERTY
Q: In case the property of an attachment under
guardianship was in custodia legis, can it be attached?
Effect of Attachment of Debts, Credits, and all other
similar Personal Property
A: Yes. In such case, a copy of the writ of attachment shall
be filed with the proper court and the notice of the attachment
shall be served upon the custodian of such property.
All persons having in their possession or under their
control any credits or other similar personal property
belonging to the party against whom attachment is issued,
or owing any debts to him, at the time of service upon
them of the copy of the writ of attachment and notice as
provided in the last preceding section, shall be liable to
the applicant for the amount of such credits, debts or other
similar personal property, until the attachment is
discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or transferred,
or such debts are paid, to the clerk, sheriff, or other proper
officer of the court issuing the attachment. (Rule 57, Sec.
8, RoC)
5. Interest in the estate of the decedent
- By serving the executor or administrator or other
representative of the decedent with
a. A copy of the writ; and
b. A notice that said interest is attached.
Discharge of attachment
A writ of attachment already enforced may be discharged in
the following ways:
1.
2.
By filing a motion to discharge the attachment and
making a deposit or counter-bond
By filing a motion to set aside or discharge the
attachment on the grounds:
a. The attachment is improperly and
irregularly issued or enforced.
b. The bond is insufficient
c. The attachment is excessive (discharged
shall be limited to the excess)
d. The property is exempt from execution and
such is also exempt from preliminary
attachment.
SECTION 11: WHEN ATTACHED PROPERTY MAY
BE SOLD AFTER LEVY ON ATTACHMENT AND
BEFORE ENTRY OF JUDGMENT
A copy of such writ of attachment and of said notice shall
also be filed in the office of the clerk of court in which said
estate is being settled and served upon the heir, legatee,
or devisee concerned.
Sale of Property covered by a Writ of Preliminary
Attachment before Entry of Judgement
SECTION 9: EFFECT OF ATTACHMENT OF
INTERESTS IN PROPERTY BELONGING TO THE
ESTATE OF A DECEDENT
GR: Property may not be sold. A writ of preliminary
attachment is a provisional remedy and its issuance does not
have the effect of final judgement over the property attached.
Effect of Attachment of
interests in Property
belonging to the estate of a decedent
XPN: An attached property may be sold after levy on
attachment and before entry of judgement whenever it shall
be made to appear to the court in which the action is pending,
upon hearing with notice to both parties, that:
1. The attached property is perishable or;
2. The interests of all the parties to the action will be
subserved by the sale of the attached property.
(Rule 57, Sec. 11, RoC)
The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the powers of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration. Such personal representative, however,
shall report the attachment to the court when any petition
for distribution is filed, and in the order made upon such
petition, distribution may be awarded to such heir, legatee
or devisee, but the property attached shall be ordered
delivered to the sheriff making the levy, subject to the
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SECTION 12: DISCHARGE OF ATTACHMENT
UPONG GIVING COUNTERBOND
Discharge
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CIVIL PROCEDURE REVIEWER
It is to remove or lift the preliminary attachment.
A party whose property is sought to be attached may
PREVENT the enforcement of the writ of attachment
by:
1. By depositing with the court from which the writ
was issued;
2. By giving a counterbond executed to the
applicant, in an amount equal to the bond fixed by
the court in the order of attachment or to the value
of the property to be attached, exclusive of costs;
and
3. By raising the defense that the property is exempt
from execution. (Sec. 5, Rule 57, RoC)
A writ of attachment already enforced may be
DISCHARGED in the following ways: (
EXAMPLE: Family home, within the meaning of
the Family Code, is not subject to a writ of
preliminary attachment.
5. The judgement is rendered against the attaching
creditor. (Rule 57, Sec. 19, RoC)
NOTE: This contemplated the situation wherein a
judgement, after due hearing, was rendered and the
attaching creditor lost. Therefore the writ of preliminary
attachment shall be discharged.
Discharge of the order of attachment on other
grounds
1.
The party whose property has been ordered attached
may file a motion to quash the order by filing a motion
with the court in which the action is pending (i) before
levy, (ii) after levy, or (iii) even after the release of the
attached property, for an order to set aside or
discharge the attachment on the ground that the same
was improperly or irregularly issued or enforced, or that
the bond is insufficient. If the attachment is excessive,
the discharge shall be limited to the excess.
2.
If the motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may
oppose the motion by counter-affidavit or other
evidence in addition to that on which the attachment
was made. After due notice and hearing, the court shall
order the setting aside or the corresponding discharge
of the attachment if it appears that it was improperly
charged or irregularly issued or enforced, or that the
bond is insufficient, or that the attachment is excessive,
and the defect is not cure forthwith.
1. If the debtor has posted a counterbond or has made
a cash deposit
NOTE: File a motion to discharge the attachment,
make a cash deposit, and file a counterbond
executed to the attaching party equal to the amount
fixed by the court in the or order of attachment,
exclusive of the costs.
Discharge is sought with respect to a particular
property only – the counterbond shall be equal to the
value of that property only as determined by the court.
A notice of the deposit shall be served on the
attaching party, The court shall, after due notice and
hearing, order the discharge of attachment.
Should the counterbond for any reason be found
to be or become insufficient and the party
furnishing the same fail to file an additional
counterbond, the attaching party may apply for a new
order of attachment. (Rule 57, Sec. 12, RoC)
2. The attachment was improperly or irregularly issued.
NOTE: When attachment is challenged for having
been illegally or improperly issued, a hearing is
required and the burden of proof to sustain the writ is
on the attaching creditor.
EXAMPLE: When there is no ground for attachment
or the court has not yet acquired jurisdiction over the
person of the defendant.
3. The attachment is excessive, but the discharge shall
be only limited to the excess; (Rule 57, Sec. 13, RoC)
NOTE: In this case, the writ is partially discharged.
4. The property is exempt from execution; or
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Effects if the judgement was rendered in favor of the
party against whom attachment was issued
1. The order of attachment will be discharge and 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 officer’s hands, shall be delivered to
the party against whom attachment was issued.
(Rule 57, Sec. 19, RoC)
2. The whole sum deposited must be refunded to
him or his assignee if the party against whim
attachment had been issued has deposited
money instead of giving counterbond. (Rule 57,
Sec. 18, RoC)
Duty of the surety or sureties on counterbond when
the judgement becomes executory
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When the judgement has become executory, the surety or
sureties on any counterbond given to secure the payment of
the judgement shall become charged on such counterbond
and bound to pay the judgement obligee upon demand the
amount due under the judgement, which amount may be
recovered from such surety or sureties after notice and
summary hearing in the same action. (Rule 57, Sec. 17,
RoC)
Counterbonds are replacements of the property formerly
attached, and just as the latter, may be levied upon after final
judgement. Stated differently, a counterbond is filed by the
defendant whose property was attached so that the property
that was attached will be released from attachment. The
condition of the counterbond will serve as the payment in
case the attaching creditor wins.
Applicant’s bond v. Counterbond
Responds for damages
resulting
from
the
attachment
COUNTERBOND
Responds for the payment
of the judgement recovered
by the attaching creditor
regardless of the wordings
of the bond
Q: If a conjugal property has been attached, can the
husband file a separate action to vindicate his right?
A: It depends on the character of the suit or if the liability
is conjugal or not. If the liability is not conjugal, the
property attached or levied upon for execution, the
husband can file a separate independent action. If the
liability is conjugal, the husband cannot file a separate
action because the husband is not considered a third
party to the case. (Sps. Buado vs CA, G.R. No. 145222,
April 24, 2009)
SECTION 15: SATISFACTION OF JUDGEMENT OUT
OF PROPERTY ATTACHED
Satisfaction of Judgement out of Property Attached
If judgement is in favour of the attaching party and execution
has issued thereon, the sheriff may cause the judgement to
be satisfied out of the property attached, if it be sufficient for
that purpose, in the following manners:
1.
2.
3.
NOTE: If it remains unsatisfied, recovery may be had on the
counterbond upon demand and notice and hearing to surety
(Rule 57, Sec. 17, RoC)
When the property attached is not sufficient to satisfy
the judgement
Counterbond
APPLICANT’S BOND
4.
belonging to the latter at the time of the attachment
and paying the proceeds to judgement oligee (Rule
57, Sec. 15, RoC); and
Ordinary execution. (Rule 57, Sec. 16, RoC)
Payment to judgement obligee the proceeds of all
sales of perishable or other property in pursuance of
the order of the court or so much necessary to
satisfy the judgement;
If any balance remains, selling so much of the
property, real or personal, as may be necessary to
satisfy the judgement;
Collecting from all persons having possession of
credits belonging to the judgement obligor or debts
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Any balance shall remain due and the sheriff must proceed
to collect such balance as upon ordinary execution
SECTION 16: BALANCE DUE COLLECTED UPON AN
EXECUTION; EXCESS DELIVERED TO JUDGMENT
OBLIGOR
When there is excess after applying the proceeds
thereof
Whenever judgement has been paid off, the sheriff, upon
reasonable demand, must return to the judgement obligor
the attached property remaining in his hands, and any
proceeds of the sale of the property attached not applied to
the judgement (Rule 57, Sec. 16, RoC)
SECTION 18: DISPOSITION OF MONEY DEPOSITED
When the party against whom attachment had been
issued deposited money instead of giving counterbond
Where the party against whim attachment had been issued
has deposited money instead of giving counterbond, it shall
be applied under the direction of the court to the satisfaction
of any judgement rendered in favour of the attaching party,
and after satisfying the judgement, the balance shall e
refunded to the depositor his assignee. (Rule 57, Sec. 18,
RoC)
SECTION 20: WRONGFUL ATTACHMENT
Consequences when attaching creditor fails to
sustain his action and judgement was rendered
against the attaching creditor
The one whose property was attached can claim for
account of improper, irregular or excessive attachment.
Requisites under Sec. 20 in order to claim for
damages against the bond:
1. The application for damages must be filed in the
same case where the bond was issued;
NOTE: The purpose of requiring the application for
damages to be filed in the same proceeding is to avoid
the multiplicity of suit and forum shopping. (Excellent
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Quality Apparel vs. Visayan Surety, G.R. No. 212025,
July 1, 2015)
2.
Such application must be filed before entry of
judgement; and
NOTE: It is required to file the application against the bond
before the finality of the decision to prevent the alteration of
the immutable judgement. (Excellent Quality Apparel vs.
Visayan Surety, G.R. No. 212025, July 1, 2015)
3.
After hearing with notice to the attaching party and his
surety
NOTE: If what was posted was a cash bond, notify the
attaching creditor only. If what was posted was a surety
bond, notify the surety as well.
Due notice to the adverse party and its surety setting forth
the facts supporting the applicant’s right to damages and the
amount thereof under the bond is indispensable. The surety
should be given an opportunity to be hears as to the reality
or reasonableness of the damages resulting from the
wrongful issuance of the writ, in the absence of due notice to
the surety, no judgement may be entered and executed
against it. (Excellent Quality Apparel vs. Visayan Surety,
G.R. No. 212025, July 1, 2015)
Application for damages
The claim for damages sustained for improper, irregular
or excessive attachment can be filed:
1. Before the trial;
2. Before appeal is perfected; or
3. Before the judgement becomes executory.
The chief purpose of the remedy of attachment is to secure
a contingent lien on defendant’s property until plaintiff
can, by appropriate proceedings, obtain a judgement.
Under no circumstance, whatsoever, can the garnished
funds or attached properties, under the custody of the sheriff
or the clerk of court, be released to the attaching party before
the promulgation of judgement. (Excellent Quality Apparel
vs. Visayan Surety, G.R. No. 212025, July 1, 2015)
NOTE: Nothing in Section 20 shall prevent the aggrieved
party from recovering in the same action the damages
awarded to him from any property of the attaching obligee
not exempt from execution should the bond or deposit give
by the attaching obligee be insufficient or fail to satisfy the
award. (Rule 57, Sec. 20, Par. 3, RoC)
As an auxiliary remedy
Attachment is an auxiliary remedy and cannot have an
independent existence apart from the main suit or claim
instituted by the plaintiff against the defendants. Being
merely ancillary to a principal proceeding, the attachment
must fail if the suit itself cannot be maintained as the purpose
of the writ can no longer be justified.
The consequence is 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 jurisdiction of the court a quo. The
attachment itself cannot be the subject of a separate case
independent of the principal action because the attachment
was only an incident of such action. (Sps. Olib and Roberta
R. Olib v. Hon. Edelwina C. Pastoral, G.R. No. 81120,
August 20, 1990)
Application for Damages
Damages may be rewarded only after proper hearing and
shall be included in the judgement in the main case.
1. Even if judgement was rendered against the attaching
creditor but he proves that he acted in good faith
procuring the writ of preliminary attachment, the
adverse party cannot recover on the attachment
bond, except, on actual damages.
Appellate Decision in favour of party against whom
attachment was issued
2. Application for damages must be made by:
Hearing
If the case is on appeal and the judgement of the appellate
court is favourable party against whom the attachment was
issued:
He must claim damages sustained during pendency of
appeal before the appellate court.
NOTE: There should be a notice to the attaching party
and his surety before judgement of the appellate court
becomes executory. The surety is given notice in order to
afford it an opportunity to be heard on the matter. It may be
heard by the trial court.
To secure a contingent lien
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a) Counterclaim in the answer; or
b) By motion in the same action
3. The application for damages must be filed before:
a) The trial court;
b) Before the appeal from the judgement therein
is perfected;
c) Before such judgement becomes executory.
4. The application should include all damages sustained
by reason of the attachment during the pendency of
the case.
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Preliminary injunction
NOTE: The bond is only answerable for the damages
sustained by reason of the implementation of the writ
of preliminary attachment. It is not supposed to
answer for all the damages suffered.
Therefore, for one to be able to ask for damages
sustained during the pendency of an appeal, one
should ask for damages during the pendency of the
trial. The reason is that, it is the trial court which
issued the writ of preliminary attachment, and the
theory is that one is damaged by the improper
issuance of the writ of preliminary attachment.
Action for Claims for Damages
GR: Claims for damages cannot be made subject of an
independent action.
NOTE: Filing an independent action or a separate action
is not necessary in order to recover on the damages you
sustained by reason of implementation of the writ of
preliminary attachment. Otherwise, it will encourage
multiplicity of suits.
XPN:
1.
Where the principal case was dismissed for lack of
jurisdiction by the trial court without giving an
opportunity to the party whose property was
attached to apply for and prove his claim for
damages
NOTE: The first exception contemplates a scenario
wherein the court after issuing and implementing the
writ of preliminary attachment, later on dismissed
the case for lack of jurisdiction over the subject
matter. This results to the defendant being left
without any remedy to claim on the damages he
sustained by reason of the implementation. That is
the time when the defendant can file a separate
action.
If the case was not dismissed, the remedy of the
debtor whose property was subjected to preliminary
attachment, is in the same case.
2.
Where the damages by reason of the attachment
was sustained by a third person who was not a
party to the action wherein such writ was issued
NOTE: The second exception is similar to the
provision of terceria under Sec. 16, Rule 39. Nothing
herein should prevent a third party from vindicating
his rights in a separate independent action.
RULE 58: PRELIMINARY INJUNCTION
SECTION 1: PRELIMINARY INJUNCTION; DEFINED
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A judicial writ, process or proceeding whereby a party is
ordered to do something or is ordered to refrain from doing a
particular act.
Injunction
It contemplates acts being committed or about to be
committed. Injunction will lie against acts already committed
if such acts are continuing in nature and were in derogation
of plaintiff’s right at the very outset.
Primary purpose of preliminary injunction
To preserve the status quo by restraining the action.
Status quo – the last actual, peaceable and uncontested
status which precedes a controversy. It is the situation
existing at the time of the filing of the case. (Riano, 2009;
Preysler Jr. v. Court of Appeals, G.R. No. 158141, July
11, 2006)
It is to be resorted to only when there is a pressing necessity
to avoid injurious consequences which cannot be remedied
under any standard of compensation. The application of the
writ rests upon an alleged existence of an emergency or of a
special reason for such an order before the case can be
regularly heard, and the essential conditions for granting
such temporary injunctive relief are that the complaint
alleges facts which appear to be sufficient to constitute a
cause of action for injunction and that on the entire showing
from both sides, it appears, in view of all the circumstances,
that the injunction is reasonably necessary to protect the
legal rights of plaintiff pending the litigation. (Sps. Estares v.
Court of Appeals, G.R. No.144755, June 8, 2005)
Characteristics
1.
2.
It is a proceeding in personam.
Preliminary Injunction can be the provisional remedy or
injunction can be the main action.
Where to file
1.
2.
If it is a provisional remedy: In all courts – from
Municipal Trial Court to Supreme Court
If it is a main action: Regional Trial Court
Venue: Where the plaintiff or principal plaintiffs resides, or
where the defendant or principal defendants resides, at the
election of the plaintiff. (Rule 4, Sec. 2, RoC)
Reason: Preliminary injunction is a personal action
When granted
At any stage of the action, proceeding prior to the
judgment or final order.
NOTE: Grant of writ of preliminary injunction can be
challenged by a petition for certiorari if the court acted in
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CIVIL PROCEDURE REVIEWER
grave abuse of discretion amounting to lack or excess of
jurisdiction. An order granting a permanent injunction
should be subject to an appeal.
Preliminary Injunction v. Final Injunction
PRELIMINARY
INJUNCTION
An order granted at any
stage of the action prior to
the judgment or final order
therein. (Rule 58, Sec. 1,
RoC)
FINAL INJUNCTION
Issued in the judgment in
the case permanently
restraining the defendant
or making the preliminary
injunction
permanent.
(Rule 58, Sec. 9, RoC)
Q: A filed a writ of preliminary attachment against B.
The writ of preliminary attachment was granted. B
filed a Motion for Reconsideration but it was denied.
What is the remedy of B, the person against whom the
writ of preliminary attachment was issued?
A: Rule 65 shall be the remedy since it is an interlocutory
order and as long as B can show that there is a grave
abuse of discretion amounting to lack or excess of
jurisdiction.
Q: B received a final injunction. Motion for
Reconsideration was also denied. What is the remedy
of B?
A: File a Notice of Appeal. However, the court where B
shall file it depends on the nature of the issue. If the
appeal is based on fact and law, it shall be filed in the CA.
If the appeal is based on pure question of law, then it shall
be filed in the SC via Rule 45.
Q: A filed a complaint for injunction against B. A won
in the RTC. B appealed. A filed a Motion for Execution
pending Appeal which was denied by the trial court.
Is the trial court correct?
Requisites for the grant of mandatory preliminary
injunction
1.
2.
3.
4.
The invasion of the right is material and substantial;
The right of the complainant is clear and unmistakable;
It is urgent and paramount necessity for the writ to
prevent previous damage; and
It should not create a new relation between the parties
which was arbitrarily interrupted by the defendant.
SECTION 2: WHO MAY GRANT PRELIMINARY
INJUNCTION
Who may grant Preliminary injunction
1. Court where the action is pending
2. Court of Appeals
3. Supreme Court
Prohibitory Injunction v. Prohibition
PROHIBITORY
INJUNCTION
Provisional remedy, Rule
58
Directed against a party
litigant in the action
It does not involve the
jurisdiction of the court
May be the main action
itself or just a provisional
remedy
PROHIBITION
Special Civil Action, Rule 65
Directed against a court,
tribunal
or
person
exercising judicial powers
and ministerial functions
Ground: the court against
whom the writ is sought
acted without or in excess
of jurisdiction
Always the main action.
Hence, writ of preliminary
injunction can be sought.
Q: What court has jurisdiction to entertain petitions for
prohibition?
A: Yes. A does not need to file a Motion for Execution
pending Appeal nor to state a good cause. This is
because a Writ for Preliminary Injunction is immediately
executory pursuant to Section 4 of Rule 49.
A: Regional Trial Court, Court of Appeals, and Supreme
Court. This is a case where the three courts have concurrent
original jurisdiction.
Types of Preliminary Injunction
Jurisdictional rules
PRELIMINARY
PROHIBITORY
INJUNCTION
To prevent a person from
doing a particular act
PRELIMINARY
MANDATORY
INJUNCTION
To require a person to
perform a particular act
The act has not yet been
performed
The act has already been
performed and this act
has violated the rights of
another. (Riano, 2012)
Status quo is restored
Status quo is preserved
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1.
The Supreme Court can issue a writ of preliminary
injunction in its original or appellate jurisdiction.
2.
Original action for injunction beyond the jurisdiction of
the Supreme Court.
3.
The Court of Appeals can issue the writ of preliminary
injunction in its original or appellate jurisdiction.
4. Jurisdiction of the Regional Trial Court to restrain
acts by writ of preliminary injunction is limited to
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those being or about to be committed within its
territorial jurisdiction.
5. No writ of preliminary injunction against unfair labor
practices or where the issue involved is interwoven
with unfair labor practices. The same rule applies in
proceedings under the Labor Code with exceptions.
6. No writ of preliminary injunction against SSS, the
Patent Office, and the COMELEC as the remedy lies
with the Court of Appeals or the Supreme Court.
7. Writ of preliminary injunction cannot be used to
restrain a court of concurrent or coordinate
jurisdiction, provided the relief sought in one which
could be granted by the court which rendered the
judgment. No restraint if initiated by a third-party
stranger to the case who is vindicating/asserting his
rights.
8. Under BP 129, provided the main action is within its
jurisdiction, the inferior court can grant writ of
preliminary injunction. Hence, the inferior court can
issue writ of preliminary injunction in either forcible
entry or unlawful detainer case.
9. No injunction in any case involving or growing out of
the approval, disapproval, revocation, suspension of
or any action by the proper administrative official or
body involving concessions, licenses, permits,
patents, or public grants in connection with the
disposition, exploitation, utilization, exploration
and/or development of natural resources. (P.D. 605)
10. Except for the Supreme Court, no court can issue
8injunctions against government infrastructure
project. (R.A. 8975)
SECTION 3: GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION
Grounds for Issuance of Preliminary Injunction
5.
6.
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;
The commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or
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7.
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. (Rule 58, Sec. 3, RoC)
SECTION 4: VERIFIED APPLICATION AND BOND
FOR PRELIMINARY INJUNCTION OR TEMPORARY
RESTRAINING ORDER
Verified application and bond for Preliminary
Injunction or Temporary Restraining Order
A preliminary injunction or temporary restraining order may
be granted only when (Rule 58, Sec. 4, RoC):
1.
Verified facts entitling the applicant to the relief
demanded; and
2.
Unless exempted by the court, bond executed to the
party or person enjoined in an amount to be fixed by
the court.
3.
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.
a.
In any event, such notice upon the adverse party
in the Philippines shall be preceded, or
contemporaneously accompanied by:
i.
service of summons
ii.
copy of the complaint or initiatory pleading
and
iii.
the applicant's affidavit and bond
b.
The requirement of prior or contemporaneous
service of summons shall not apply where:
i.
the summons could not be served personally
or by substituted service despite diligent
efforts; or
ii.
the adverse party is a resident of the
Philippines temporarily absent therefrom or
is a nonresident thereof
Action on TRO
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. (Rule 58, Sec. 5 RoC)
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Temporary restraining order
One which may issue upon the filing of an application for
an injunction forbidding the defendant to do the
threatened act until the hearing on the application for a
writ of preliminary injunction can be had.
Purpose of TRO: to maintain status quo until the hearing
for writ of preliminary injunction can be had
NOTE: The grant or denial of a TRO does not
automatically mean the grant or denial of a writ of
preliminary injunction. Because the issuance of a TRO
may only be based on summary hearing. Whereas, the
writ of preliminary injunction will be based on presentation
of evidence.
A bond is also required for the issuance of a TRO, unless
exempted by the court.
Status quo order
It is not a TRO. It is merely intended to maintain the last,
actual, peaceable and uncontested state of things that
preceded the controversy.
Status quo order can be issued motu propio on equitable
grounds. It is more in the nature of a cease and desist
order. It does not require posting of a bond.
SECTION 5: PRELIMINARY INJUNCTION NOT
GRANTED WITHOUT NOTICE; EXCEPTION
Within 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 other words, to determine whether the 72-hour TRO can
be expanded to 20 days.
NOTE: The 72 hours shall be part of the 20-day TRO. It is
not 72 hours in addition to 20 days.
Within the period of 20 days, a hearing will be conducted
to determine whether the TRO can be made into a full-blown
writ of preliminary injunction.
When writ of preliminary injunction is granted
If the plaintiff has proved his entitlement for writ of
preliminary injunction, there shall be no period anymore.
Once the writ of preliminary injunction is granted, the act
sought to be enjoined shall be enjoined while the case is
pending.
When writ of preliminary injunction is denied
If 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 the effect, and no court shall
have authority to extend or renew the same on the same
ground for which it was issued. (Rule 58, Sec. 5, RoC)
If issued by the Court of Appeals
Preliminary Injunction not granted without Notice;
Exception
The TRO shall be effective for 60 days from service on the
party or person sought to be enjoined.
The writ of preliminary injunction cannot be issued without a
hearing. Upon filing of the complaint, the other party is
notified of the raffling. Such party is invited to appear during
the raffle. No notice is tantamount to denial of due process.
(Rule 58, Sec. 5, RoC)
If issued by the Supreme Court
Courts should avoid issuing a writ of preliminary injunction
which disposes main case without trial.
GR: No preliminary injunction can be granted ex parte.
XPN: 72-hour temporary restraining order.
72-hour temporary restraining order
As a general rule, writ of preliminary injunction can only be
issued after hearing. Because of the urgency and it will take
some time before the court can initiate a hearing, the court
may issue a 72-hour TRO.
Who can issue a 72-hour TRO
1. Executive judge, if it is a multiple sala court; or
2. Presiding judge of a single-sala court.
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The TRO shall be effective until further orders.
If issued by the trial court, the CA, the Sandiganbayan
or the Court of Tax appeals that issued a writ of
preliminary injunction
NOTE: A restraining order issued ex parte must comply with
Section 4 of Rule 58 – service of summons and
accompanying documents. Because there should be a
hearing to determine whether the 72-hour TRO can be
extended to 20 days.
Non-extendibility of TRO
The efficacy of a temporary restraining order is nonextendible and 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. (Federation of Land Reform Farmers of the Phils.
v. CA, 246 SCRA 175)
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Applicant’s bond
Irreparable injury
An injury is irreparable if:
1. It is of such constant and frequent recurrence that no
fair reasonable redress can be had therefor; or
2. There is no standard by which their amount may be
measured with reasonable certainty. In other words,
not capable of pecuniary estimation or mathematical
computation.
Remedy against an improper writ of preliminary
injunction/permanent injunction
1. Certiorari lies against a preliminary injunction
2. Appeal lies against a judgment against a permanent
injunction
SECTION 6: GROUNDS FOR OBJECTION TO, OR
FOR MOTION OF DISSOLUTION OF, INJUNCTION
OR RESTRAINING ORDER
Grounds for objection to, or for Motion of Dissolution
of, Injunction or Restraining Order
1. The complaint is insufficient
2. Defendant is permitted to post a counter-bond, it
appearing that he would sustain great damage while
the plaintiff can be amply compensated; and
3. On other ground, as when bond posted by applicant
is insufficient or defective
NOTE: The filing of a counter-bond does not necessarily
warrant the dissolution of the injunction as the court has
to assess the probable relative damages.
Q: WPI was issued. The propriety of the WPI was
challenged and the SC said that the issuance of the writ
is valid. The court did not commit grave abuse of
discretion amounting to lack of jurisdiction. When it was
remanded to the trial court, the trial court dissolved the
writ because the other party posted a counter bond. So
the other party (the one who won in the SC) said that
according to the SC, his writ was issued validly so you
cannot dissolve it. Is the petitioner here correct?
A: No, because dissolution is different from issuance.
Section 3, Rule 58 will govern the issuance of the writ
and the dissolution of the writ is governed by Section 6,
Rule 58. Even if the writ was validly issued, it can be
dissolved pursuant to Section 6. (Sps. Yap v.
International Exchange Bank, G.R. No. 175145, March
28, 2008)
SECTION 7: SERVICE OF COPIES OF BONDS;
EFFECT OF DISAPPROVAL OF THE SAME
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The amount addressed to the sound discretion of the
court. It is conditioned to address all damages which may
be sustained by reason of the injunction or the TRO if the
court finally decided that the applicant was not entitled
thereto.
Party filing a bond shall serve a copy of such bond on the
other party, who may except to the sufficiency of the bond
or of the surety
The injunction shall be dissolved if:
1. Applicant’s bond is insufficient or if the surety fail
to justify; and
2. A bond sufficient in amount with sufficient
sureties approved after justification is not filed
NOTE: A bond is required unless exempted by the court.
An order merely stating that the petition was sufficient in
form and substance without even stating the facts which
would support the granting of the injunction is a clear
violation of the rule. (Dela Paz v. Adiong, A.M. Nos. RTJ04-1857, Nov. 23, 2004)
The injunction shall be granted or restored if:
1. The bond of the adverse party is found to be
insufficient in amount; or
2. The surety fail to justify a bond sufficient in
amount with sufficient sureties approved after
justification is not filed
SECTION 8: JUDGMENT TO INCLUDE DAMAGES
AGAINST PARTY AND SURETIES
Judgment to include damages against party and
sureties
At the trial, the amount of damages to be awarded to either
party shall be claimed, ascertained and awarded under the
same procedure in Sec. 20, Rule 57. (Rule 58, Sec. 8, RoC)
SECTION 9: WHEN FINAL INJUNCTION GRANTED
Ground for final injunction to be granted
If after the trial of the action it appears that the applicant is
entitled to have the act/s complained of permanently
enjoined. (Rule 58, Sec. 9, RoC)
Effect of final injunction
To perpetually restrain the party enjoined from the
commission or continuance of the act/s or confirming the
preliminary mandatory injunction.
RULE 59: RECEIVERSHIP
SECTION 1: APPOINTMENT OF RECEIVERSHIP
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CIVIL PROCEDURE REVIEWER
preserving, administering, or disposing the
property
Nature of Receivership
It is a provisional remedy wherein the court appoints a
representative to preserve, administer, dispose of and
prevent the loss or dissipation of real or personal property
during the pendency of an action. It can be availed of even
after the judgment has become final and executory as it may
be applied for to aid execution or carry judgment into effect.
(2001 Bar)
NOTE: Receivership, like injunction, may also be a principal
action as the one referred to in Sec. 4 of Rule 39. Rule 59 is
a receivership that is ancillary to a main action. (Riano,
2012)
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 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. It is the
responsibility of the court to supervise the receiver and see
to it that he adheres to the above standards of his trust and
limits the expenses of the receivership to the minimum.
(Normandy v. Duque, 29 SCRA 385)
NOTE: A party to an action may not be appointed as a
receiver unless consented to by all parties.
Purpose of a Receiver:
To protect and preserve the rights of the parties during the
pendency of the main action. Receivership is aimed at the
preservation of, and at making more secure existing rights, it
cannot be used as a destruction of those rights.
When a Receiver may be appointed:
1. 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. In foreclosure of 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 it
according to the judgment, or in aid of execution
when execution has remained unsatisfied;
4. In other cases, where the appointment of a receiver
is the most convenient and feasible means of
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The power to appoint a receiver is a delicate one and should
be exercised with extreme caution and only under the
circumstances requiring summary relief or where the court is
satisfied that there is imminent danger of loss, lest the injury
thereby caused be far greater than the injury sought to be
averted. The court should consider the consequences to all
of the parties and the power should not be exercised when it
is likely to produce irreparable injustice or injury to private
rights, or the facts demonstrate that the appointment will
injure the interests of others whose rights are entitled to as
much consideration from the court as those of the
complainant. (Vivares v. Reyes, G.R. No. 155408,
February 13, 2008)
When to file Receivership
1.
2.
At any stage of the proceedings;
Even after finality of judgment.
Instances when receivership will not lie
1. On a property in custodia legis. (Lizarraga Hermanos.
v. Abada, 40 Phil 124)
However, a receiver can be appointed where a property
in custody of an administrator or executor is in danger of
imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)
2. Where the action is merely to obtain a money judgment
on unpaid credits and not to enforce a lien upon specific
property or funds in the possession of the defendant.
(Bonaplata v. Ambler et al., 2 Phil 392; Regalado,
2012)
3. In actions involving possession of or title to real property,
the appointment of receiver may be made only if there is
clear necessity to protect the applicant from grave or
irremediable damages.
SECTION 2: BOND ON APPOINTMENT OF
RECEIVER
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. (Rule 59,
Sec. 2, RoC)
Purpose of the bond
Payment for damages a party may sustain by reason of the
appointment of such receiver.
SECTION 3: DENIAL OF APPLICATION OR
DISCHARGE OF RECEIVER
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CIVIL PROCEDURE REVIEWER
Denial of application or discharge of Receiver
1. When the adverse party files a bond executed to
the applicant, in an amount to be fixed by the
court; or
2. If it is shown that his appointment was obtained
without sufficient cause.
b.
c.
d.
SECTION 4: OATH AND BOND OF RECEIVER
e.
f.
g.
h.
Oath and Bond of Receiver
Before entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a bond
Two kinds of bonds in receivership
1. Applicant’s Bond - the bond required before the
appointment of a receiver. (Rule 59, Sec. 2 RoC)
2. Receiver’s Bond – The receiver required before
entering upon his duties as a receiver who shall
be sworn to perform his duties faithfully and shall
file a bond to the effect that he will faithfully
discharge his duties in the action and to obey the
orders of the court. (Rule 59, Sec. 4, RoC)
SECTION 5: SERVICE OF COPIES OF BONDS;
EFFECT OF DISAPPROVAL
Service Of Copies Of Bonds; Effect Of Disapproval
Receivership will be denied or lifted if:
1. If the bond posted by the applicant is found to be
insufficient in amount, or if the surety thereon fail
to justify;
2. A bond (applicant) sufficient therein is not filed
forthwith;
3. If the bond of the adverse party is found to be
insufficient in amount, or if the surety fail to justify;
4. A bond (adverse party) is not filed forthwith;
5. If the bond of the receiver is insufficient (Rule 59,
Sec. 5, RoC)
SECTION 6: GENERAL POWERS OF THE RECEIVER
General Powers Of The Receiver
The receiver shall be subject to the control of the court in
which the action is pending.
1. The receiver shall have the power to bring and
defend, in such capacity:
a. Actions in his own name
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i.
another instance where a person not a
real party is authorized to sue as a
representative party under Section 3,
Rule 3
To take and keep possession of the
property in controversy
To receive rents
To collect debts due to himself as
receiver or to fund property, estate or
person of which he is the receiver
To compound for or compromise
To make transfers
To pay outstanding debts
To divide the money and other property
that shall remain among the parties
legally entitled to receive the same
To do such acts as the court may
authorize. (Rule 59, Sec. 6, RoC)
NOTE:
1. Funds in the hands of a receiver may be invested
ONLY by the order of the court upon written
consent of all the parties to the action.
2. NO action may be filed BY OR AGAINST a
receiver without leave of court which appointed
him.
NOTE: if he entered into any acts (ex. contracts)
WITHOUT leave of court , he shall be PERSONALLY
LIABLE.
3. If property is in CUSTODIA LEGIS, receivership
cannot be effected.
4. In probate proceedings, a receiver may be
appointed.
NOTE: If the property is in danger of imminent lost or injury
SECTION 7: LIABILITY FOR REFUSAL OR NEGLECT
TO DELIVER PROPERTY TO RECEIVER
Liability For Refusal Or Neglect To Deliver Property To
Receiver
1.
2.
3.
Contempt
Damages that may have sustained by the party entitled
thereto
Liable for value of the property or money refused or
neglected to be surrendered (Rule 59, Sec. 7, RoC)
SECTION 8: TERMINATION
Termination
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CIVIL PROCEDURE REVIEWER
Whenever the court, motu proprio or on motion of either
party, shall determine that the necessity or a receiver NO
LONGER EXISTS justified by the facts and
circumstances of the case, may dissolve the receivership
upon due proceedings. (Rule 59, Sec. 8, RoC)
SECTION 9: JUDGMENT TO INCLUDE RECOVERY
AGAINST SURETIES
Judgment To Include Recovery Against Sureties
NOTE:
raised in the replevin case (Central Visayas vs. Adlawan,
G.R. No. 212674, March 25, 2019).
Q: Is Replevin a mixed action?
A: Yes. 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 (BA Finance Corp. v. CA, G.R. No. 102998, July 5,
1996).
It shall be granted under the same procedure in Section 20
of Rule 57:
1.
2.
3.
Damages must be filed before the trial or before
appeal is perfected or before judgment becomes
executory
With DUE NOTICE to the attaching party AND his
surety or sureties
Damages may be awarded only after proper hearing
and shall be included in the judgment in the main
case.
Damages Due To Receiver’s Malfeasance
The same shall be recovered from the bond filed by the
receiver.
Recovery in this case can be done in a SEPARATE
ACTION. Mere motion in the case where receivership was
granted will not suffice.
RULE 60: REPLEVIN
Replevin is the provisional remedy seeking for the
possession of the property prior to the determination of the
main action for replevin.
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 (Rule 60, Sec. 1, RoC).
This provisional remedy of replevin is available where the
principal purpose of the action is to recover the possession
of personal property (Regalado, 2010).
NOTE: Possession is not only limited to physical possession
but may also be constructive possession.
Who may avail
1.
Plaintiff – where the complaint prays for recovery of
possession of personal property.
2.
Defendant – where a counterclaim was set out in
the answer for recovery of personal property.
It is available to any other party asserting affirmative
allegations praying for the recovery of personal property
unjustly detained.
When to file
Replevin may also be a main action with the ultimate goal of
recovering personal property capable of manual delivery
wrongfully detained by a person. In this sense, it is a suit in
itself (BA Finance Corp. v. CA, G.R. No. 102998, July 5,
1996).
Before filing of the answer or at the commencement of the
action.
Nature of an action for Replevin
A: NO. As a general rule, it is in the nature of a possessory
action. It is sufficient that at the time he applied for a writ of
replevin he is found to be entitled to a possession thereof.
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.
Replevin is so usually described as a mixed action, being
partlyin remand partlyin personam. An action for replevin
bars the deficiency suit because the deficiency could well be
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Q: Does the applicant have to be the holder of the legal title
to the property?
Primarily, the action of replevin is possessory in character
and determines nothing more than the right of possession.
However, when the title to the property is distinctly put in
issue by the defendant's plea, the question of ownership may
be resolved in the same proceeding because a replevin
action is sufficiently flexible to authorize a settlement of all
equities between the parties, arising from or growing out of
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CIVIL PROCEDURE REVIEWER
the main controversy (Chiao Liong v. CA, G.R. No. 106251,
November 19, 1993).
2.
3.
Q: Pedro filed a case against Juan and upon execution of
the judgment, the car of Andres was levied upon. Can
Andres file a writ of replevin?
4.
A: NO. Because in this case, the car has been justly
detained by reason of a court order.
NOTE: Replevin cannot be availed of if the property is in
custodia legis, as where it is under attachment or was
seized under a search warrant (Regalado, 2010).
Q: What is the remedy available to Andres?
A: Andres should file an action to annul the foreclosure
proceeding, if this is the main case or lift the levy.
Replevin v. Preliminary Attachment
REPLEVIN
PRELIMINARY
ATTACHMENT
PURPOSE
The purpose is to have the
property put in the custody
The purpose is to recover
of the court to secure the
personal property capable
satisfaction of the
of manual delivery from the
judgment that may be
defendant.
rendered in favor of the
plaintiff.
OWNERSHIP OR RIGHT OF POSSESSION
The property either belongs
The property does not
to the plaintiff or one over
belong to the plaintiff but to
which the plaintiff has a
the defendant.
right of possession.
WHEN AVAILABLE
Can be sought only when
May be resorted to even if
defendant is in actual or
property is in possession
constructive possession of
of a third person
the property
Without showing that the
Need to show that the
property is being concealed property is being removed,
or disposed of to the
concealed or disposed of
prejudice of the plaintiff
EXTENT
Property capable of manual
Real, personal or even
delivery
incorporeal property
BOND
Double the value of the
Equal to that fixed by the
property as stated in the
court
affidavit
PROPERTY UNDER CUSTODIA LEGIS
Not available
Not available
Requisites
1.
Applicant is owner of the property claimed or is entitled
to possession;
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Property is wrongfully detained by the adverse party;
Property is not distrained or taken for tax assessment
or fine pursuant to law, or seized (if seized, that the
property is exempt);
Principal purpose of the action is to recover possession
of personal property.
Rule 60 of the Rules of Court allows a plaintiff, in an action for
the recovery of possession of personal property, to apply for a
writ of replevin if it can be shown that he is "the owner of the
property claimed or is entitled to the possession thereof." The
plaintiff need not be the owner so long as he is able to specify
his right to the possession of the property and his legal basis
therefor. (Servicewide v. CA, GR No. 103301, December 8,
1995)
Where there is still a probability that the seizure will be followed
by the filing of a criminal action, as in the case at bar where the
case for carnapping was "dismissed provisionally, without
prejudice to its reopening once the issue of ownership is
resolved in favor of complainant," or the criminal information has
actually been commenced, or filed, and actually prosecuted, and
there are conflicting claims over the property seized, the proper
remedy is to question the validity of the search warrant in the
same court which issued it and not in any other branch of the
said court (Chua v. CA, GR No. 79021, May 17, 1993).
SECTION 2: AFFIDAVIT AND BOND
Contents of the affidavit
The affidavit shall state:
1. That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to the
possession thereof;
2. 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;
3. 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
4. The actual market value of the property (Rule 60,
Sec. 2, RoC).
Applicant’s bond or replevin bond
1. Executed to the adverse party
2. Double the value of the property as stated in the
affidavit
3. Conditions of the Bond:
a. The return to of property to adverse party
if such return be adjudged; and
b. The payment to adverse party of such
sum as he may recover from the
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CIVIL PROCEDURE REVIEWER
applicant in the action. (Rule 60, Sec. 2,
RoC)
c.
NOTE: In attachment, the bond is in such amount as may
be fixed by the court, not exceeding the applicant’s claim
or equal to the value of the property to be attached; in
injunction, the amount of the bond must also be fixed by
the court; while in receivership, a bond is now always
required of the applicant and shall be in the sum fixed by
the court in its discretion. (Regalado, 2010)
Under Section 2, Rule 60 the bond it filed is to ensure "the
return of the property to the defendant if the return thereof
be adjudged, and for the payment to the defendant of
such sum as he may recover from the plaintiff in the
action." The bond itself ensures, inter alia, the payment of
such sum may in the cause be recovered against the
plaintiff and the cost of the action. (Stronghold
Insurance vs. CA, GR No. 89020, May 05, 1992)
A surety bond remains effective until the action or
proceeding is finally decided, resolved, or terminated,
regardless of whether the applicant fails to renew the
bond. The applicant will be liable to the surety for any
payment the surety makes on the bond, but only up to the
amount of this bond. (Enriquez vs. Mercantile
Insurance, GR No. 210950, August 15, 2018)
SECTION 3: ORDER
Procedure
1. An application is filed at the commencement of
the action or at any time before answer of
defendant;
2. Application must contain an affidavit;
3. Applicant must file a bond;
4. Approval of the bond by the court;
5. Court shall then issue an order and the writ of
replevin:
a. It must describe the personal property
alleged to be wrongfully detained
b. Requiring the sheriff to take such
property into his custody (Rule 60, Sec.
3, RoC).
NOTE: The writ of replevin may be served anywhere in
the Philippines (Fernandez vs. International, GR
No.131283, October 07, 1999).
SECTION 4: DUTY OF THE SHERIFF
Duty of the Sheriff
1.
When the court approves the application, the
court shall issue an order and the corresponding
writ of replevin describing the property alleged to
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2.
3.
be wrongfully detained. This order shall require the
sheriff to take the property into his custody.
Upon the receipt of the court order, the sheriff must:
a. Serve a copy of the order on the
adverse party together with a copy of
the application, affidavit, and bond
b. Take custody of the property
After the sheriff has taken custody of the property,
he must keep it in a secure place. He shall be
responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary
expenses for taking and keeping the same (Rule 60,
Section 4, RoC).
If the property or any part thereof be concealed in a building
or enclosure, the sheriff must demand its delivery.
If the property is not delivered, the sheriff must cause the
building or enclosure to be broken open and take the
property into his possession.
NOTE: Unlike a preliminary attachment and preliminary
injunction, the rule on prior or contemporaneous jurisdiction
is not provided for in replevin. However, the rule requires
that upon such order, the sheriff must serve a copy on the
adverse party together with the required documents.
A sheriff’s prerogative does not give him the liberty to
determine who among the parties is entitled to possession.
When a writ is placed in the hands of a sheriff, it is his duty
to proceed with reasonable celerity and promptness to
execute it according to its mandate.
Where replevin writ was improperly implemented
The proper remedy to an improperly implemented writ of
replevin is to file a motion to quash (Siy v. Tomlin, GR
No. 205998, April 24, 2017).
But failure of a party to file a motion to quash does not
prevent a party from assailing the improper service via a
petition for certiorari. The trial court is deemed to have
acted without or in excess of its jurisdiction if improperly
served. It must restore the parties to their former positions
by returning the seized property and by discharging the
replevin bond (Rivera v. Vargas, G.R. No. 165895, June
05, 2009).
SECTION 5: RETURN OF PROPERTY
At any time before the delivery of the property to the
applicant, the adverse party may require the return
thereof. The adverse party may object to the sufficiency
of the bond or of the sureties thereon. This is to be done
by filing with the court where the action is pending a
redelivery bond executed to the applicant (Riano, 2019).
When: At any time before delivery to applicant.
How: By filing a redelivery bond. (Rule 60, Sec. 5, RoC)
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CIVIL PROCEDURE REVIEWER
Within the 5-day period after the sheriff has taken the
property, the adverse party:
1. May object to the sufficiency of the applicant’s
bond or surety; or
2. May file a redelivery bond, if he does not object
to the sufficiency of the bond
Redelivery Bond
This is executed to the applicant and filed where the
action is pending.
Amount: double the value of the property as stated in the
affidavit of the applicant
Undertaking:
a. The delivery thereof to the applicant, if such
delivery be adjudged; and
b. The payment of such sum to him as may be
recovered against the adverse party. (Rule 60,
Sec. 5, RoC)
The adverse party is entitled to the return of the
property taken under writ of replevin, if:
1. He seasonably posts a redelivery bond
2. The applicant’s bond is found to be insufficient or
defective and is not replaced with a proper bond
3. The property is not delivered to the plaintiff for
any reason
In summary, for the adverse party to effect the return of
his property under the custody of the sheriff, the following
must be met:
1. He should post a redelivery bond in an amount
double the value of the property;
2. The bond is executed to the applicant;
3. He should serve a copy of the bond to the
applicant;
4. He must perform the above acts before the
delivery of the property to the applicant. This
means within 5 days from the taking of the
property by the sheriff;
5. The bond is sufficient. (Riano, 2019).
SECTION 6: DISPOSITION OF PROPERTY BY
SHERIFF
The property is not to be immediately delivered to the
applicant because, within 5 days from the taking of the
property, the sheriff shall wait for the move of the adverse
party. (Riano, 2019)
Property shall be delivered to the applicant, if within
5 days after the taking of the property by the sheriff:
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1. The adverse party does not object to the
sufficiency of the bond, or of the surety or sureties
thereon; or
2. The adverse party so objects and the court
affirms its approval of the applicant’s bond or
approves a new bond; or
3. 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 (Rule 60, Sec. 6, RoC).
If the adverse party does not object to the sufficiency of
the bond within said period or fails to perform acts
described in the Rules to effect the return to him of the
property taken by the sheriff, the property shall be
delivered to the applicant upon receiving his fees and
necessary expenses for taking and keeping the same
(Riano, pg. 100, 2019).
SECTION 7: PROCEEDINGS WHRE 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
1. 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
2. The sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant
3. 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 Sec. 2, Rule 60.
4. In case of disagreement as to such value, the court
shall determine the same.
5. 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 120 days
from the date of the filing of the bond (Rule 60,
Section 7, RoC).
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 (Rule 60, Section 7, RoC).
The party-claimant, however, is not precluded from
vindicating his claim to the property. He may even maintain
a separate action and seek injunctive relief against the
sheriff. The applicant is likewise not precluded by the Rules
from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a
separate action (Riano, pg. 103, 2019).
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CIVIL PROCEDURE REVIEWER
NOTE: The procedure is similar to that in third-party
claims in execution under Sec. 16, Rule 39 and in
attachment Sec. 14, Rule 57.
Writ issued in favour of the Republic
When the writ of replevin is issued in favor or 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 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 (Rule 60, Sec. 7, RoC).
Difference in service of affidavits
1. Affidavit is served upon the sheriff while he has
possession of the attached property (Rule 57,
Sec. 14, RoC)
2. Affidavit is served within 5 days in which sheriff
has possession [in connection with Sec. 6, Rule
60] (Rule 60, Sec. 7, RoC)
SECTION 8: RETURN OF PAPERS
The sheriff must file the order, with his proceedings
indorsed thereon, with the court within 10 days after
taking the property mentioned therein. (Rule 60, Sec. 8,
RoC)
SECTION 9: JUDGMENT
After trial of the issues, the court shall determine who has
the right of possession to and the value of the property
and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for its
value in case delivery cannot be made, and also for such
damages as either party may prove, with costs. (Rule 60,
Section 9, RoC)
The judgment in a replevin suit is in the alternative, i.e. to
deliver the property to the party entitled to the same or to
pay its value in case delivery cannot be made. If the
property is no longer in the condition in which it should be,
the party entitled to its delivery may refuse to accept the
property. He may then ask for the alternative remedy
which is the payment of its value even if he had previously
sought its delivery during the pendency of the case.
(Riano, 2019)
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 (Rule 60,
Sec. 10, RoC).
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Application
Q: Pedro sold his car to Juan. Juan borrowed money from
Maria and used that money to pay Pedro. Juan executed a
chattel mortgage over the car as a security for the payment
of his debt to Maria. Allegedly, according to Maria, Juan did
not pay her. Now Maria wants the property and files for a
replevin. It was granted by the court. Maria got the car.
However, Juan was able to prove that he really did not
breach the obligation because he had already paid the
amount. The problem is the car was stolen. What is the
remedy of Juan?
A: Go after the replevin bond.
Q: When is the defendant entitled to the return of the
property taken by the Sherrif?
A:
1.
2.
3.
When he seasonable post the delivery of the
replevin bond
When the plaintiff‘s bond is insufficient
When the property by any reason whatsoever has
not been delivered to the plaintiff
The property shall be delivered to the applicant if there is no
objection to the sufficiency of the bond he posted 5 days from
taking. And the 5 day period begins from the time the Sheriff
seizes the property and not from the time notice is served.
On the other hand, if in that 5-day period, the person who is
in possession of the property posts a bond, the Sherriff must
give back the property.
RULE 61: SUPPORT ‘PENDENTE LITE’
Support Pendente Lite
It is an amount of support provisionally fixed by the court in
favor of the person or persons entitled thereto during the
pendency of an action for support. Here, the main action is
usually for support and support pendente lite is the
provisional remedy (Riano, 2019).
Regional Trial Court Jurisdiction
This provisional remedy can only be issued by the RTC.
Q: In Baito v. Sarmiento, it was contended that the RTC had
no jurisdiction because the amount demanded as support
was only P720.00. Is this correct?
A: In present time, regardless of the value/amount, the RTC
acting as a family court has the jurisdiction to hear and
decided cases on support (Baito v. Sarmiento, GR No. L13105, August 25, 1960).
SECTION 1: APPLICATION
Who may apply
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It may be applied for by any party, not only the plaintiff, as
long as there are legal grounds to support such
application. (Riano, 2019)
After the comment is filed or after the expiration for the
period for its filing, the application shall be set for hearing
not more than 3 days thereafter.
The facts in issue shall be proved in the same manner as
is provided for evidence on motions (Rule 61, Section 3,
RoC).
When to apply
1. At the commencement of the action; or
2. At any time before judgment or final order.
Requisites for the Application
1. Verified application filed by any party;
2. Stating
a. Grounds for the claim; and
b. Financial conditions of both parties;
3. Accompanied by
a. Affidavits;
b. Depositions; or
c. Other authentic documents in support
thereof (Rule 61, Sec. 1, RoC).
NOTE: This is the only provisional remedy that does not
require a bond.
The rule on support pendente lite has been modified by
A.M. No. 02-11-10-SC. The court will take into account
that support is dependent upon the needs of the recipient
and the ability of the giver.
Because of its provisional nature, a court does not need
to delve fully into the merits of the case before it can settle
an application for this relief. All that a court is tasked to do
is determine the kind and amount of evidence which may
suffice to enable it to justly resolve the application. It is
enough that the facts be established by affidavits or other
documentary evidence appearing in the record (Lim-Lua
v. Lua, G.R. No. 175279-80, June 05, 2013).
SECTION 2: COMMENT
The adverse party shall have 5 days to comment from the
receipt of the application, unless a different period is fixed
by the court (Rule 61, Section 2, RoC).
The comment shall be
1. Verified; and
2. Accompanied by
a. Affidavits;
b. Depositions; or
c. Other authentic documents in support
thereof (Rule 61, Section 2, RoC).
SECTION 3: HEARING
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SECTION 4: ORDER
Application Granted
If the application is granted, the court shall
1. Fix the amount of money to be provisionally paid; or
2. Such other forms of support as should be provided
(Rule 61, Sec. 4, RoC).
NOTE: Taking into account the necessities of the applicant
and the resources or means of the adverse party, and the
terms of payment or mode for providing the support.
Application Denied
If the application is denied, the principal case shall be tried
and decided as early as possible (Rule 61, Sec. 4, RoC).
Interlocutory in Nature
GR: Support pendente lite is interlocutory in nature. It is,
therefore, not subject to appeal.
XPN: A final judgment on support is subject to appeal.
NOTE: It is immediately executory and cannot be stayed by
an appeal (Gan v. Reyes, G.R. No. 145527, May 28, 2002).
The assailed orders relative to the incident of support
pendente lite and support in arrears, as the term suggests,
were issued pending the rendition of the decision on the main
action for declaration of nullity of marriage, and are therefore
interlocutory. Where the judgment or final order is not
appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. The remedy against an
interlocutory order not subject of an appeal is an appropriate
special civil action under Rule 65 provided that the
interlocutory order is rendered without or in excess of
jurisdiction or with grave abuse of discretion (Calderon v.
Roxas, G.R. No. 185595, January 9, 2013).
The amount fixed in the order is only provisional. It is not final
in character and can be modified depending on the changing
conditions affecting the ability of the obligor to pay the
amount fixed for support (Riano, 2019).
Upon receipt of a verified petition for declaration of
absolute nullity of void marriage or for annulment of
voidable marriage, or for legal separation, and at any time
during the proceeding, the court, motu proprio or upon
verified application of any of the parties, guardian or
designated custodian, may temporarily grant support
pendente lite prior to the rendition of judgment or final
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order (Lim-Lua v. Lua, G.R. No. 175279-80, June 05,
2013).
(Saavedra v. Ybahez Estrada, 56 Phil. 33, September 04,
1931).
The amount of support pendente lite is not final in character
but the factual issue as to the ability of the obligor to pay the
support previously fixed should be resolved by the lower
court on the basis of evidence to be presented at the proper
hearing (San Juan v. Valenzuela, G.R. No. L-59906,
October 23, 1982).
Liability for contempt
An appeal would not have been a speedy and adequate
remedy in an action for support (Vinluan v. Justices of the
Court, G.R. No. L-25029, August 28, 1968).
As despite this special order the petitioner made no deposit
in court for the support of the minors, he was, at their
instance, cited for contempt, and the court having found after
hearing that though possessed of adequate means he really
had made no deposit, an order was handed down under date
of December 17 declaring him guilty of indirect contempt
(Torres v. Teodoro, G.R. Nos. L-10093, April 30, 1957).
SECTION 5: ENFORCEMENT OF ORDER
Failure to comply with an order granting support
pendente lite may give rise to criminal liability:
If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu proprio or upon
motion, issue an order of execution against him without
prejudice to his liability for contempt
The person ordered to provide support pendente lite who
fails to provide financial support or deliberately provides
insufficient financial support may be prosecuted for
economic abuse under R.A. No. 9262
When the person ordered to give support pendente lite
refuses or fails to do so, any third person who furnished that
support to the applicant may, after due notice and hearing in
the same case, obtain a writ of execution to enforce his right
of reimbursement against the person ordered to provide such
support (Rule 61, Sec. 5, RoC).
SECTION 6: SUPPORT IN CRIMINAL CASES
Failure to comply with an order granting support
pendente lite may warrant the following sanctions:
1.
2.
3.
The issuance by the Court, motu proprio or upon
motion, of an order of execution against the adverse
party.
Possible liability for contempt. This is an exception
to the rule that the defendant may not be cited for
contempt if he fails to comply with judgments for
money.
Third person who furnished support may obtain writ
of execution to enforce his right of reimbursement
provided:
a. There is due notice and hearing in the
same case, and
b. That such third person furnished the
support to the applicant because of the
refusal or failure to do so by the person
ordered to give support (Rule 61, Sec. 5,
RoC).
NOTE: While an order for support pendente lite is merely
interlocutory and not a final order, the order is subject to the
issuances of an order of execution when the person ordered
to give support refuses or fails to do so.
The support granted under this Rule is provisional in nature
and the actual amount and terms of its payment shall be
determined in the final judgment. If the judgment is in favor
of the defendant, the support pendente lite is discontinued
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In criminal actions where the civil liability includes support for the
offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved or instituted prior to its
filing, the accused may be ordered to provide support pendente
lite to the child born to the offended party allegedly because of
the crime.
The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian and the
State in the corresponding criminal case during its pendency, in
accordance with the procedure established under this Rule
(Rule 61, Sec. 6, RoC).
NOTE: A previous finding of guilt is not required.
In criminal cases, the accused may be ordered to provide
support pendente lite to the child born to the offended party
allegedly because of the crime.
The remedy may be availed of where the civil liability includes
support for the offspring born to the offended party as a
consequence of the crime provided the civil aspect thereof has
not been waived, reserved or instituted prior to its filing. The
application for support pendente lite may be made during the
pendency of the criminal case.
When the judgment finds that the person giving support is not
liable therefor, the court shall order the recipient to make a
restitution of what has been received with legal interest from the
date of actual payment (Riano, 2019).
Who may file application
1.
2.
3.
4.
Offended party
Her Parents
Grandparents or Guardian
State
Such right granted to the persons above is in line with the
provisions of Art. 344 of the Revised Penal Code and Sec.
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5, Rule 110 of the Rules of Court which authorize them to
file the basic criminal complaint and, therefore, should
include such auxiliary remedies as may be permitted
therefor (Regalado, 2010).
claim said property or who consider themselves entitled
to demand compliance with the obligation, be required to
litigate among themselves, in order to determine finally
who is entitled to one or the other thing.
Such application may be granted in rape cases for the
offspring of the accused as a consequence of the rape or
seduction (Bar 1999, 2001).
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 (Ocampo v. Tirona, GR
No. 147812, April 6, 2005).
It is true that the adultery of the wife is a defense in an
action for support. However, the alleged adultery of the
wife must be established by competent evidence. The
mere allegation that the wife has committed adultery will
not bar her from the right to receive support pendente lite
(Reyes v. Ines-Luciano, G.R. No. L-48219, February
28, 1979).
SECTION 7: RESTITUTION
When the judgment or final order of the court finds that
the person who has been providing support pendente lite
is not liable therefor, it shall order the recipient thereof to
return to the former the amounts already paid with legal
interest from the dates of actual payment, without
prejudice to the right of the recipient to obtain
reimbursement in a separate action from the person
legally obliged to give the support. Should the recipient
fail to reimburse said amounts, the person who provided
the same may likewise seek reimbursement thereof in a
separate action from the person legally obliged to give
such support (Rule 61, Sec. 7, RoC).
Remedies of person who was erroneously compelled
to give support
1. The person can apply for an order for such
reimbursement by the recipient on motion in the
trial court in the same case, unless such
restitution is already included in the judgment
rendered in the action; or
2. Failing therein, he can file a separate action for
reimbursement against the person legally obliged
to give such support
Should the recipient reimburse the amount received by
him as support through either of the remedies provided,
he shall also have the right to file a separate action for
reimbursement against the person legally obliged to give
him such support
SECTION 1: WHEN INTERPLEADER PROPER
Whenever conflicting claims upon the same subject
matter are or may be made against a person who claims
no interest whatsoever in the subject matter, or an interest
which in whole or in part is not disputer by the claimants,
he may bring an action against the conflicting claimants
to compel them to interplead and litigate their several
claims among themselves (Rule 62, Sec. 1, RoC).
An interpleader is commenced by the filing of a complaint.
NOTE: An interpleader requires a case with a minimum of
two defendants wherein the plaintiff has no cause of action.
Plaintiff should file an action of interpleader within a
reasonable time after a dispute has arisen without waiting to
be sued by either of the contending claimants. Otherwise, he
may be barred by laches or undue delay (Wack Wack Golf
vs. Won, GR No. L-23851, March 26, 1976).
Requisites for an interpleader
1.
2.
3.
4.
There must be two or more claimants with adverse
or conflicting interests upon a subject matter;
The conflicting claims involve the same subject
matter;
The conflicting claims are made against the same
person (plaintiff);
The plaintiff has no claim upon the subject matter of
the adverse claims or if he has an interest at all,
such interest is not disputed by the claimants (Rule
62, Sec. 1, RoC).
Plaintiff is faced with a legal problem involving a
determination of who among the conflicting claimants has the
legal right to receive the property subject of the controversy
or who among them is entitled to the performance of the
obligation (Riano, 2019).
When interpleader does not apply
RULE 62: INTERPLEADER
The action of interpleader is a remedy whereby a person
who has property whether personal or real, in his
possession, or an obligation to render wholly or partially,
without claiming any right in both, or claims an interest
which in whole or in part is not disputed by the conflicting
claimants, comes to court and asks that the persons who
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Mere existence of conflicting claims between or among
several persons is no sufficient to sustain an interpleader
action where such claims do not refer to the same subject
matter.
Also, the conflicting over the same subject matter will not
sustain an action in interpleader if such claims are merely
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CIVIL PROCEDURE REVIEWER
claims against each other but not claims against the
plaintiff in interpleader. The rule requires that the
conflicting claims be made against a person who claims
no interest whatever in the subject matter.
Jurisdiction
If the subject matter of the action is personal property, valued
at not more than P300,000, the MTC has jurisdiction where
the case is filed outside the Metro Manila. Where the case is
filed in Metro Manila, the MTC has jurisdiction if the personal
property is valued at not more than P400,000.
If the subject matter is real property with an assessed value
of not more than P20,000, the MTC has jurisdiction where
the case is filed outside Metro Manila. Where the case is filed
in Metro Manila, the MTC has jurisdiction if the assessed
value if the real property does not exceed P50,000.
If the subject matter subject of the interpleader is one
incapable of pecuniary estimation like the performance of an
obligation, the RTC has jurisdiction (Riano, 2019).
Q: Bea, a creditor, went to Chad, a lessee, to inform him that
his lessor, Kurt, has an outstanding obligation from her
amounting to 100k. Bea insisted that pursuant to a MOA all
receivables from the rent shall be paid to her. Kurt told Chad
that rentals should still be paid to him because MOA is
invalid.
Can Chad choose not to pay because of the existing
conflicting claims?
A: No. Kurt can file an unlawful detainer case against Chad.
The remedy is an interpleader case to force Bea and Kurt to
litigate between themselves who is entitled to receive the
rentals.
NOTE: You have to consign the rentals in court. Hence, what
should be filed is an interpleader with consignation.
Interpleader distinguished from intervention
INTERPLEADER
Special
civil
action,
independent and original
Commenced by the filing of
the complaint, it being an
original action
Filed by a person who has
no interest in the subject
matter of the action or if he
has an interest, the same is
not
disputed
by
the
claimants
INTERVENTION
Not an original action but
merely
ancillary
and
depends
upon
the
existence of a pending
action
Commenced by a motion
for leave to intervene filed
in a pending case attaching
thereto the pleading-inintervention
Filed by a person who has
a legal interest in any of the
following:
the
subject
matter of the litigation; the
success of either of the
parties; an interest against
both; or he may be
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Defendants are brought into
the action because they are
sued and impleaded as
such in the complaint
adversely affected by the
disposition or distribution of
property in the custody of
the court or of an officer
thereof
If
a
complaint-inintervention is filed, the
defendants are already
parties to an existing suit,
not
because
of
the
intervention but because of
the original suit
SECTION 2: ORDER
Upon the filing of the complaint, the court shall issue an
order requiring the claimants to interplead with one
another. If the interests of justice so require, the court may
direct in such order that the subject matter be paid or
delivered to the court (Rule 62, Sec. 2, RoC).
SECTION 3: SUMMONS
Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order (Rule 62,
Section 3, RoC).
Q: What shall be served upon conflicting claimants?
A:
1. Copy of the complaint;
2. Order; and
3. Summons
SECTION 4: MOTION TO DISMISS
Within the time for filing an answer, each claimant may file a
motion to dismiss on the ground of impropriety of the
interpleader action or on other appropriate grounds specified
in Rule 16. The period to file the answer shall be tolled and if
the motion is denied, the movant may file his answer within
the remaining period, but which shall not be less than 5 days
in any event, reckoned from notice of denial (Rule 62, Sec.
4, RoC).
Q: On June 1, I received the summons. On June 10, I filed a
motion to dismiss. My motion to dismiss was denied on
August 1. How many days do I have left to file an answer?
A: 6 days left.
Q: In the same situation, what if I filed a motion to dismiss on
June 16?
A: Technically I have no more days left. However under the
provision, the remaining period to file an answer shall not be
less than 5 days in any event, reckoned from notice of denial.
So, I still have 5 days or until August 6 to file an answer.
Motion to dismiss
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CIVIL PROCEDURE REVIEWER
Within the time for filing an answer, each claimant may file
a motion to dismiss on the ground of:
1. Impropriety of the interpleader; or
2. Other grounds specified in Rule 16.
After the pleadings of the conflicting claimants have been
filed, and pre-trial has been conducted in accordance with
the Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims (Rule
62, Sec. 6, RoC).
NOTE: Under the new Rules, a motion to dismiss under
Rule 16 may only be filed on the basis of the 4 grounds:
lack of jurisdiction over the subject matter, litis pendentia,
res judicata, and prescription.
NOTE: Rule 18 of the Rules of Court shall also apply.
Where the allegations in the complaint do not show
conflicting claims between or among the persons required
to interplead, the complaint is subject to dismissal on the
ground of impropriety of the interpleader. The ground to
be invoked in this situation is not a failure to state a cause
of action because the meaning of a cause of action in
ordinary civil action does not exactly apply to an
interpleader.
Effect of filing of a motion to dismiss
The period to file an answer is interrupted by filing of a
motion to dismiss. If the motion is denied, the movant may
file his answer within the remaining period to answer, but
which shall not be less that 5 days in any event. This
period shall be counted from the notice of denial of
motion.
SECTION 5: ANSWER AND OTHER PLEADINGS
Each claimant shall file his answer setting forth his claim
within 15 days from service of the summons upon him,
serving a copy thereof upon each of the other conflicting
claimants who may file their reply thereto as provided by
these Rules.
If any claimant fails to plead within the time herein fixed,
the court may, on motion, declare him in default and
thereafter render judgment barring him from any claim in
respect to the subject matter.
The parties in an interpleader action may file:
1. Counterclaims;
2. Crossclaims;
3. Third-party complaints; and
4. Responsive pleadings thereto as provided by
these Rules (Rule 62, Sec. 5, RoC).
An answer may be filed in an interpleader. A reply may or
may not be filed. However, if it is an actionable document,
then a reply is necessary.
A party may be declared in default. Any declaration of default
requires a prior motion to that effect. The court is not
authorized to declare a claimant in default motu proprio
(Riano, 2019).
SECTION 6: DETERMINATION
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The trial court's writ of execution in the interpleader case
does not carry with it the corollary right to a writ of
possession. A writ of possession complements the writ of
execution only when the right of possession or ownership
has been validly determined in a case directly relating to
either. The interpleader case obviously did not delve into that
issue (Maglente vs. Padilla, GR No.148182, March 07,
2007).
SECTION 7: DOCKET AND OTHER LAWFUL FEES,
COSTS AND LITIGATION EXPENSES AS LIENS
The docket and other lawful fees paid by the party who
filed a complaint under this Rule, as well as the costs and
litigation expenses, shall constitute a lien or charge upon
the subject matter of the action, unless the court shall
order otherwise (Rule 62, Sec. 7, RoC).
A plaintiff may recover the cost of the suit (Rule 62, Sec.
7, RoC).
RULE 63: DECLARATORY RELIEF AND SIMILAR
REMEDIES
SECTION 1: WHO MAY FILE PETITION
Declaratory relief
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 63, Sec. 1, RoC).
Similar remedies
An action for the reformation of an instrument, to quiet title to
real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be
brought under this Rule (Rule 62, Sec. 7, RoC).
Who may file
1. Any person interested under a deed, will, contract
or other written instrument; or
2. Those whose rights are affected by a statute,
executive order or regulation, ordinance, or any
other governmental regulation
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CIVIL PROCEDURE REVIEWER
Condition
There must be no breach or violation. In a petition for
declaratory relief, plaintiff has no cause of action because
there must be no breach.
After the breach of the contract or statute, the petition can
no longer be brought (Riano, 2019).
NOTE: The concept of cause of action in ordinary civil
action does not apply to declaratory relief because it
presupposes no breach or violation of the instruments
involved.
Subject matter of declaratory relief
1.
2.
3.
4.
5.
6.
7.
8.
Deed
Will
Contract
Other written instrument
Statute
Executive Order
Regulation
Ordinance
NOTE: Oral agreements cannot be the subject matter of
a petition for declaratory relief, it has to be an instrument
in writing.
Petition for declaratory relief is not available in unilateral
actions like declaration of citizenship and court decisions,
the remedy in the latter is to move for clarification or
appeal.
Court decisions cannot be the proper subjects of a petition
for declaratory relief, decisions of quasi-judicial agencies
cannot be subjects of a petition for declaratory relief for
the simple reason that if a party is not agreeable to a
decision either on questions of law or of fact, it may avail
of the various remedies provided by the Rules of Court
(Monetary Board v. Philippine Veterans Bank, GR No.
189571, January 21, 2015).
Relief
The relief sought by the petition is the declaration of
petitioner’s rights and duties based on the said
documents.
The purpose is to seek for a judicial interpretation of an
instrument or for a judicial declaration of a person’s rights
under a statute and not to ask for affirmative reliefs like
injunction, damages or any other relief beyond the
purpose of the petition as declared under the Rules
(Riano, 2019).
GR: Judgement in a petition for declaratory relief does not
essentially entail any executional process as the only relief
to be properly granted therein is the declaration of the rights
and duties of the parties under the instrument.
Rule 39 does not apply because there is nothing to execute.
XPN: One of the exceptions is where the court allowed the
execution process to be applied to forestall multiplicity of
suits. If the judgement was not executed and only declaratory
relief was granted, the plaintiff may again file an action of the
same nature which would entail a long and arduous process
(Department of Budget and Management v. Manila’s
Finest Retirees Assoc. Inc., GR No. 169466, May 9, 2007).
Issue
The validity or construction of such documents shall be the
issue in the petition.
NOTE: The only issue that may be raised in such a petition
is the question of construction or validity of provisions in an
instrument or statute. Corollary is the general rule that such
an action must be justified, as no other adequate relief or
remedy is available under the circumstances.
Respondent religiously fulfilled its obligations to petitioners
even during the pendency of the present suit. There is no
showing that respondent committed an act constituting a
breach of the subject contract of lease. Thus, respondent is
not barred from instituting before the trial court the petition
for declaratory relief. (Almeda v. Bathala Marketing
Industries, G.R. No. 184434, February 08, 2010).
Where filed
The action shall be filed in the RTC and the purpose shall be
to determine any question of construction or validity arising,
and for a declaration of his rights or duties, thereunder.
NOTE: The subject matter of a petition for declaratory relief
raises issues which are not capable of pecuniary estimation
and must be filed with the Regional Trial Court (Riano,
2019).
Where the action is one for quieting of title, which is a similar
remedy under this Rule, the jurisdiction will depend upon the
assessed value of the real property. However, where in an
action styled as for quieting or removal of a cloud on a title,
the plaintiff actually seeks for a declaration of his rights, the
action is one for declaratory relief, which falls within the
jurisdiction of the RTC (Riano, pg. 150, 152, 2019).
An action for reformation of an instrument and
consolidation of ownership should also be instituted with
the Regional Trial Court. The assessed value should not
be considered.
Requisites for declaratory relief
1. Subject matter must be one of those mentioned;
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2. The terms of said documents and validity thereof
are doubtful and require judicial construction;
3. There must have been no breach of the
documents in question;
4. There must be an actual justiciable controversy
or the "ripening seeds" of one between persons
whose interests are adverse;
5. The issue must be ripe for judicial determination,
e.g. administrative remedies should have been
exhausted;
6. Adequate relief is not available through other
means or other forms of action or proceeding
(Ferrer v. Roco, G.R. No. 174129, July 05,
2010).
NOTE: There is ripening of seeds when there is a
threatened litigation in the immediate future, which
litigation is imminent and inevitable unless prevented by
the declaratory relief.
Under the doctrine of primary administrative jurisdiction,
courts cannot or will not determine a controversy where
the issues for resolution demand the exercise of sound
administrative discretion requiring the special knowledge,
experience, and services of the administrative tribunal to
determine technical and intricate matters of fact.
In other words, if a case is such that its determination
requires the expertise, specialized training and
knowledge of an administrative body, relief must first be
obtained in an administrative proceeding before resort to
the courts is had even if the matter may well be within their
proper jurisdiction (Ferrer v. Roco, GR No. 174129, July
05, 2010).
SECTION 2: PARTIES
All persons who have or claim any interest which would
be affected by the declaration shall be made parties; and
no declaration shall, except as otherwise provided in
these Rules, prejudice the rights of persons not parties to
the action (Rule 63, Sec. 2, RoC).
Other parties
The other parties are all persons who have or claim any
interest which would be affected by the declaration (Rule 63,
Section 2, RoC).
NOTE: Non-joinder of parties is not a jurisdictional defect.
A third-party complaint cannot be entertained in an action for
declaratory relief since no material relief is sought. A thirdparty complaint may be filed only for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's
claim.
A counterclaim may however be set up. There is nothing in
the nature of a special civil action for declaratory relief that
proscribes the filing of a counterclaim based on the same
transaction, deed or contract subject of the complaint. A
special civil action is after all not essentially different from an
ordinary civil action (Department of Budget and
Management v. Manila’s Finest Retirees Assoc. Inc., GR
No. 169466, May 9, 2007).
SECTION 3: NOTICE ON SOLICITOR GENERAL
In any action which involves the validity of a statute,
executive order or regulation, or any other governmental
regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon
such question (Rule 63, Sec. 3, RoC).
NOTE: Constitutionality of a statute may be raised in the
RTC. (Republic v. Drilon, 2013)
SECTION 4: LOCAL GOVERNMENT ORDINANCES
In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the
local governmental unit involved shall be similarly notified
and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified
and entitled to be heard (Rule 63, Sec. 4, RoC).
NOTE: If ordinance was declared by the RTC as
unconstitutional, it shall go up to the Supreme Court via
Petition for Review under Rule 45 because only questions of
law are involved and not factual issues.
Who may file the petition
SECTION 5: COURT ACTION DISCRETIONARY
Where the subject of the petition is a deed, will, contract
or other written instrument, the petition is commenced by
“any person interested” therein.
Those who may sue under the contract should have an
interest therein like the parties, their assignees and heirs
as required by substantive law.
Where the subject of the petition is a statute, executive
order or regulation, ordinance, or any other governmental
regulation, the petition is commenced by one “whose
rights are affected” by the same (Riano, 2019).
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Except in actions falling under the second paragraph of
section 1 of this Rule, the court, motu proprio or upon motion,
may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to
the action, or in any case where the declaration or
construction is not necessary and proper under the
circumstances (Rule 63, Section 5, RoC).
NOTE: Sec. 5 does not apply to similar remedies; court has
no choice but to resolve the case falling under the second
paragraph of Sec. 1, Rule 63.
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CIVIL PROCEDURE REVIEWER
In declaratory relief, the court is given the discretion to act
or not to act on the petition on the basis of 2 grounds:
1. Where a decision on the petition would not
terminate the uncertainty or controversy which
gave rise to the action; or
2. Where the declaration or construction is not
necessary and proper under the circumstances
as when the instrument or the statute has already
been breached (Riano, pg. 145, 2019).
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 (Rule 63, Sec. 6, RoC).
NOTE: Remember, a plaintiff in a petition for declaratory
relief has no cause of action. Therefore, if a breach takes
place before the final termination of the case, the action
will not be dismissed but it will be converted into an
ordinary action and the parties should be allowed to file
pleadings as may be necessary or proper.
However, if there is already a breach prior to the filing of
a petition for declaratory relief, the case would be
dismissed and not converted into an ordinary civil action.
Payment of docket fees
Q: Can an interlocutory order issued by Comelec be subject
to a Rule 64 petition?
A: No. Because the review is only with respect to final
judgment, final order, or resolution of the Comelec or COA.
This decision must be a final decision or resolution of the
Comelec En Banc, not of a division, certainly not an
interlocutory order of a division. The Supreme Court has no
power to review via certiorari, an interlocutory order or even
a final resolution of a Division of the Commission on
Elections. (Jumamil v. COMELEC, GR No. 167989-93,
March 06, 2007)
The order coming from the regional office was issued in the
exercise of its adminsitrative powers. It was not issued in the
exercise of the adjudicatory powers of the Comelec, and
therefore, it is not right to bring it up to the Supreme Court
via Rule 64. The subject matter of a Rule 64 petition are
decisions, final orders, final resolutions of the Comelec En
Banc or the COA En Banc, issued in the exercise of its
adjudicatory functions and not administrative function. In this
case, the notice and letter are issued only by a Regional
Comelec Office. (Diocese of Bacolod vs. COMELEC, GR
No. 205728, January 21, 2015)
The Constitution and the Rules of Court limit the permissible
scope of inquiry in Rules 64 and 65 certiorari petitions only
to errors of jurisdiction or grave abuse of discretion. Hence,
unless tainted with grave abuse of discretion, the COA’s
simple errors of judgment cannot be reviewed even by the
Supreme Court. (Fontanilla vs. COA, GR No. 209714, June
21, 2016)
SECTION 2: MODE OF REVIEW
If the petition for declaratory relief is converted into an
ordinary civil action, the court will order the petitioner to
pay the requisite filing fees.
A party aggrieved by the judgment, final order or resolution
of the COMELEC or the COA may file a petition for certiorari
under Rule 65 with the Supreme Court. (Rule 64, Sec. 2,
RoC)
RULE 64: REVIEW OF FINAL JUDGMENTS AND
FINAL ORDERS OR RESOLUTIONS OF THE
COMELEC AND COA
SECTION 1: COVERAGE
Rule 64 is a mode of review which must be brought on
certiorari under Rule 65 before the Supreme Court. What you
file is Rule 64 on the ground of Rule 65 which are errors of
jurisdiction.
Rule 64 applies only to judgment or final order or
resolution from two Constitutional Commissions:
1. Commission on Elections; and
2. Commission on Audit
The remedy for other Constitutional Commissions e.g.
Civil Service Commission and Commission on Human
Rights is petition for review under Rule 43 elevated to the
Court of Appeals.
NOTE: Comelec and COA here refers to the Comelec En
Banc and COA En Banc. It is not based on an action of
the division.
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It is available only when there is no appeal, nor any other
plain, speedy or adequate remedy in the ordinary course of
law (Riano, pg. 175, 2019).
NOTE: Questions of facts, questions of law or mixed
questions of fact and law are not to be raised in the petition
under Rule 64, in relation to Rule 65, such questions
amounting to mere errors of judgments and, thus, are the
proper subjects of an appeal (Riano, pg. 175, 2019).
A petition for review on certiorari is the remedy provided in
Rule 45, Section 1 against an adverse judgment, final order,
or resolution of the CA, Sandiganbayan, and the RTC or
other courts whenever authorized by law. On other hand,
Rule 64, Section 1 defines the scope of the Rule, while
Section 2 refers to the mode of review and provides that the
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CIVIL PROCEDURE REVIEWER
judgments, final orders, and resolutions of the COA are to be
brought on certiorari to this Court under Rule 65 (Oriondo
vs. COA, GR No. 211293, June 04, 2009).
Rule, parties who availed themselves of the remedy of
motion for reconsideration are now allowed to file an
appeal within fifteen days from the denial of that motion.
SECTION 3: TIME TO FILE PETITION
However, despite the ruling of the Court that the Neypes
Rule strictly applies only with respect to judicial decisions
and that the said rule does not firmly apply to
administrative decisions, the specific administrative rules
of procedure applicable in such cases explicitly
precluded the application of the Fresh Period Rule.
When do you file?
The petition shall be filed within 30 days from the notice
of the judgment or final order or resolution sought to be
reviewed (Rule 64, Section 3, RoC).
If a motion for reconsideration was filed, if allowed by the
procedural rules of Commission concerned, such filing will
interrupt the running of the period of 30 days. Once the
order denying the motion for reconsideration is received,
the petitioner has the remaining balance of the period
within which to file a petition for certiorari under Rule 64,
but in no case less than five (5) days.
EXAMPLE: X received the final judgment of COA on
December 1. X has a period thirty (30) days from
December 1 within which to file an original special civil
action under Rule 64. X filed a motion for reconsideration
on December 15, which left him with 16 days as the
remaining balance of the period. If X received the order
denying his motion for reconsideration on February 1, he
has until February 17 within which to file his petition under
Rule 64.
Q: If X received the decision of COA on December 1 and
filed his motion for reconsideration on December 27, and
received the order denying the motion for reconsideration
on February 5, when is his deadline to submit his petition?
A: February 10. Although X has only 4 days of the
remaining balance of the period, his deadline is not
February 9, because it is clear in section 3 that it is no
case that the period is less than five (5) days.
NOTE: Neypes ruling is not applicable in Rule 64. Neypes
Rule states that the “fresh period rule” applies to Rule 40,
42, 43, and 45, and will also apply to government
agencies covered by the Puerto del Sol ruling. Rule 64
and 65 are not modes of appeal.
Puerto del Sol Palawan ruling vis-à-vis the application
of Neypes Rule in administrative cases
In the case of Puerto del Sol Palawan, Inc. v. Hon.
Kissack B. Gabaen, et al., G.R. Noi. 212607, March 27,
2019, concerning a case previously filed before the
National Commission on Indigenous Peoples, the
Supreme Court ruled that under Sec. 97, Rule XVII, of the
2003 National Commission on Indigenous Peoples (2003
NCIP Rules of Procedure), the provisions of the Rules of
Court shall apply in an analogous and suppletory
character. Under the Rules of Court, with the advent of
the Neypes Rule, otherwise known as the Fresh Period
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For instance, in Panolino v. Tajala, G.R. No. 183616, June
29, 2010, the Court did not apply the Neypes Rule because
according to Administrative Order No. 87, Series of 1990,
which was the applicable rule of procedure in cases before
the DENR, “if a motion for reconsideration of the
decision/order of the Regional Office is filed and such motion
for reconsideration is denied, the movant shall have the right
to perfect his appeal during the remainder of the period of
appeal, reckoned from the receipt of the resolution of denial.”
Another example, in San Lorenzo Builders and Developers
Group, Inc. v. Bayang, G.R. No. 194702, April 20, 2015, the
Court did not apply the Fresh Period Rule in an appeal of a
decision of the Housing and Land Use Regulatory Board
(HLURB) before the Office of the President (OP) because
according to the applicable rule therein, i.e., Section 2, Rule
XXI of HLURB Resolution No. 765, Series of 2004, in relation
to Paragraph 2, Section 1 of Administrative Order No. 18,
Series of 1987, "in case the aggrieved party files a motion for
reconsideration from an adverse decision of any
agency/office, the said party has the only remaining balance
of the prescriptive period within which to appeal, reckoned
from receipt of notice of the decision denying his/her motion
for reconsideration."
Similarly, in Jocson v. San Miguel, G.R. No. 206941, March
9, 2016, the Fresh Period Rule was also not applied in an
appeal from a decision of the Provincial Adjudicator to the
Department of Agrarian Reform Adjudication Board
(DARAB) because under the 2003 DARAB Rules of
Procedure, "the filing of a Motion for Reconsideration shall
interrupt the period to perfect an appeal. If the motion is
denied, the aggrieved party shall have the remaining period
within which to perfect his appeal. Said period shall not be
less than five (5) days in any event, reckoned from the
receipt of the notice of denial."
In Puerto del Sol Palawan, there is no similar provision in the
2003 NCIP Rules of Procedure which states that in case the
aggrieved party files a motion for reconsideration from an
adverse decision of the RHO, the said party has only the
remaining balance of the period within which to appeal,
reckoned from receipt of notice of the RHO's decision
denying the motion for reconsideration.
Section 46, Rule IX of the 2003 NCIP Rules of Procedure
clearly adopts the Fresh Period Rule, stating that, in a
situation wherein a motion for reconsideration was filed, a
judgment rendered by the Regional Hearing Officer
(RHO) shall become final only when no appeal is made
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CIVIL PROCEDURE REVIEWER
within fifteen (15) days from receipt of the order denying
such motion for reconsideration. By issuing an Order that
plainly and unmistakably goes against the above-stated
rule, the Court finds that NCIP, RHO IV gravely abused
its discretion.
their expertise on the specific matters under their jurisdiction
(Riano, pg. 177, 2019).
Q: Who do you implead?
A:
1.
2.
Motion for new trial or reconsideration
Whether or not a party may file a motion for new trial or
motion for reconsideration of the judgment, final order or
resolution of the commission involved is dependent upon
the procedural rules of the commission concerned. If such
motions are allowed, the filing of either shall interrupt the
period for the filing of the petition for certiorari (Riano, pg.
179, 2019).
If a motion for new trial or motion for reconsideration was
filed, if provided and allowed under the rules of the
Commission, it will stop the running of the 30-day period.
Once the order denying the motion for reconsideration or
motion for new trial was received, then the period will start
to run again. You have the remaining balance of the
period within which to file Rule 64 petition, but in no event,
it shall be less than 5 days (Chua vs. COMELEC, GR No.
236573, August 14, 2018).
Rule 64 is generally identical with certiorari under Rule 65,
except as to the period of the filing of the petition for
certiorari, that is, in the former, the period is 30 days from
notice of the judgment or final order or resolution sought
to be reviewed but, in the latter, not later than 60 days
from notice of the judgment, or order or resolution
assailed. As a general rule a motion for reconsideration
should be filed, if allowed by the procedural rules of
Comelec and COA (Causing vs. COMELEC, GR No.
199139, September 09, 2014).
SECTION 4: DOCKET AND OTHER LAWFUL FEES
Upon filing of the petition, the petitioner shall pay to the
clerk of court the docket and other lawful fees and deposit
the amount of P500.00 for costs (Rule 64, Section 4,
RoC).
SECTION 5: FORM AND CONTENTS OF PETITION
The petition shall state the name of the aggrieved party and
implead the Commission concerned, and the person or
persons interested in sustaining the judgment, final order or
resolution a quo. It shall also include the facts, issues, and
arguments and the material dates, and state the prayer for
the annulment of the judgment (Rule 64, Section 5, RoC).
The findings of facts of the Commission, when supported by
substantial evidence shall be final and non-reviewable.
It is well-settled that findings of fact of quasi-judicial agencies
are generally accorded respect and even finality by the
Court, if supported by substantial evidence, in recognition of
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3.
Petitioner – Aggrieved Party
Public Respondent – COMELEC or COA, also
called nominal party; and
Private Respondent – person or persons interested
in sustaining the judgment
Q: Why is there a need to implead constitutional bodies or
the court, as in the case of Rule 65?
A: It involves the question of jurisdiction and the petitioner
wants the Supreme Court to act within its jurisdiction over
these constitutional bodies under Rule 64.
Q: Why is there a need to implead private respondent?
A: The private respondent is supposed to be the one filing
the comment in order to sustain the ruling of the 2
constitutional bodies.
Q: Is it required for the COMELEC or COA to file a comment?
A: As a general rule, NO. It is the private respondent who
shall file the comment because he is the one interested in
sustaining the judgment. It is the duty of the private
respondent to ensure that the judgment issued by the
constitutional bodies will be sustained.
Q: What are the additional requirements?
A:
1. Clearly legible duplicate original or certified true
copy (CTC) of the judgment, final order or
resolution subject thereof;
2. Certified true copies of such material portions of
the record as are referred to therein;
3. Other documents relevant and pertinent thereto;
4. The requisite number of copies of the petition
shall contain plain copies of all documents
attached to the original copy of said petition;
5. Petition shall state the specific material dates
showing that it was filed within the proper period;
6. Certificate of Non-forum Shopping;
7. Proof of service of a copy to the Commission and
on the adverse party;
8. Timely payment of docket and other lawful fees.
The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the
dismissal of the petition (Rule 64, Section 5, RoC).
NOTE: Rule 64 is an original special civil action. It is not
a continuation of the proceedings before the
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CIVIL PROCEDURE REVIEWER
Constitutional Commissions. It is an initiatory pleading,
therefore, it is a requirement to put a certificate of nonforum shopping. Without this requirement, petition will
be dismissed, and it is not curable by an amendment.
The petition shall attach proof of service of copies to the
Commission and the adverse party that the decision was
elevated on certiorari. If copies were not furnish to them,
or absent such proof, the petition shall be dismissed and
the decision of the Commission shall attain finality.
by the Court. If there is no directive, the petitioner may file a
motion to admit reply, because it cannot be filed as a matter
of right.
SECTION 8: EFFECT OF FILING
The filing of a petition for certiorari shall not stay the
execution of the final judgment or final order or resolution
sought to be reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just (Rule 64,
Section 8, RoC).
To stop the decision of the Comelec or COA from being
executed, the petition needs to be coupled with a prayer
of Temporary Restraining Order (TRO) or Writ of
Preliminary Injunction (WPI).
If you want it stayed, the petition must be coupled with a
prayer for the issuance of a TRO, which if issued by the
Supreme Court, is without a period until lifted.
SECTION 6: ORDER TO COMMENT
NOTE: TRO issued by the CA is effective for 60 days. TRO
issued by the RTC is effective for 20 days.
Upon compliance of the above mentioned requirements,
the court will now issue an order to comment upon the
private respondent. He or she is given a period of ten (10)
days from notice within which to file a comment.
The Court may dismiss the petition outright if the petition
is not sufficient in form and substance, if it was filed
manifestly for delay or the questions raised are too
unsubstantial to warrant further proceedings (Rule 64,
Section 6, RoC).
SECTION 9: SUBMISSION FOR DECISION
Unless the Court sets the case for oral argument, or requires
parties to submit memoranda, the case shall be deemed
submitted for decision upon the filing of the comments on the
petition, or of such other pleadings or papers as may be required
or allowed, or the expiration of the period to do so (Rule 64,
Section 9, RoC).
RULE 65: CERTIORARI, PROHIBITION AND
MANDAMUS
Q: What will the Supreme Court do upon filing?
A: The Court will check whether the petition is sufficient
in form and in substance.
In terms of form, if it complies with all the requirements in
Section 5 such as if the petition is accompanied by
duplicate original or certified true copies of the judgment,
final order or resolution, or the certificate of non-forum
shopping, and also if it was filed on time.
In terms of substance, if the petition has the right
arguments that will sustain the challenged decision.
If the petition is sufficient in form and substance, the court
will also check if petitioner paid the docket and other legal
fees.
SECTION 7: COMMENTS OF RESPONDENTS
The comments of the respondents shall be filed in 18 legible
copies and the original shall be accompanied by certified true
copies of the material portions of the records referred to
together with other supporting papers. Copy shall be served
to the petitioner (Rule 64, Section 7, RoC).
Q: Can petitioner file a reply immediately?
A: No. The petitioner must wait for the court to direct him or
her to file a reply. Section 7 clearly states that no other
pleading may be filed by any party unless required or allowed
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Certiorari v. Prohibition v. Mandamus
CERTIORARI
Extraordinary
writ annulling or
modifying
the
proceedings of a
tribunal, borad or
officer exercising
judicial or quasijudicial functions
when
such
tribunal, board or
officer has acted
without or in
excess of its or
his jurisdiction,
or with grave
abuse
of
discretion
amounting
to
lack or excess of
jurisdiction, there
being no appeal
or any other
plain,
speedy
and
adequate
remedy in the
ordinary course
PROHIBITION
DEFINITION
Extraordinary
writ commanding
a
tribunal,
corporation,
board or person,
whether
exercising
judicial, quasijudicial
or
ministerial
functions,
to
desist
from
further
proceedings
when
said
proceedings are
without or in
excess of its
jurisdiction,
or
with abuse of its
discretion, there
being no appeal
or any other
plain,
speedy
and
adequate
remedy in the
MANDAMUS
Mandamus is an
extraordinary writ
commanding
a
tribunal,
corporation, board
or person, to do an
act required to be
done:
a. When
he
unlawfully
neglects the
performance
of
an
act
which the law
specifically
enjoins as a
duty,
and
there is no
other
plain,
speedy and
adequate
remedy in the
ordinary
course of law;
or
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CIVIL PROCEDURE REVIEWER
of law (Sec. 1, ordinary course
Rule 65).
of law (Sec. 2,
Rule 65).
Entity or person
exercising
juridical
or
quasi-judicial
function.
Entity or person
is alleged to
have
acted
without
jurisdiction; in
excess
of
jurisdiction; or
with
grave
abuse
of
discretion.
To annul
nullify
proceeding.
or
a
Corrective – to
correct
usurpation
of
jurisdiction.
Discretionary
acts
b.
When
one
unlawfully
excludes
another from
the use and
enjoyment of
a right or office
to which the
other
is
entitled (Sec.
3, Rule 65).
AGAINST WHOM
Entity or person
exercising
Entity or person
juridical
or
exercising
quasi-judicial
ministerial
function
or
function.
ministerial
function.
GROUND
Entity or person
is alleged to Entity or person is
have
acted alleged to have
without
unlawfully
jurisdiction; in neglected
a
excess
of ministerial duty; or
jurisdiction; or excluded another
with
grave from a right or
abuse
of office.
discretion.
PURPOSE
To require the
To have the respondent to:
respondent
desist
from 1. Do the act
further
required; and
proceeding.
2. To
pay
damages
NATURE
Affirmative
or
Positive – if the
performance of a
Negative and
duty is ordered; or
Preventive – to
restrain
or
Negative – if a
prevent
person is ordered
usurpation
of
to desist from
jurisdiction.
excluding another
from a right or
office.
SCOPE
Discretionary
and Ministerial Ministerail acts
acts
SECTION 1: CERTIORARI
A Writ of Certiorari is a writ emanating from a superior
court directed against an inferior court, tribunal, board or
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officer exercising judicial or quasi-judicial functions whereby
the record of a particular case is ordered to be elevated for
review and correction in matters of law. It is intended for the
correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. Its
principal office is only to keep the inferior court within the
parameters of its jurisdiction or to prevent it from committing
such a grave abuse of discretion amounting to lack or excess
of jurisdiction (Tagle vs. Equitable PCI Bank, G.R. No.
172299, April 22, 2008).
In original actions for certiorari under this Rule, the findings
of fact of the Court of Appeals are not conclusive or binding
upon the Supreme Court, unlike the general rule in appeals
by certiorari under Rule 45. That theory of conclusiveness
does not apply in this special civil action under Rule 65
(Regalado, 2010).
Effect to the Principal Action or Reglementary Period
An original action for certiorari is an independent action and
does not interrupt the principal action nor the running of the
reglementary period. To arrest the course of the principal
action during the pendency of the certiorari proceedings,
TRO or WPI must likewise be prayed for.
Cannot be issued against a tribunal/agency/court of the
same rank
A writ of certiorari or prohibition cannot be issued by the RTC
against an administrative agency exercising quasi-judicial
functions since the latter is of the same rank as the RTC
(remember that a writ of Certiorari is a writ emanating from a
superior court). This is based on the doctrine of noninterference or doctrine of judicial stability.
Subject Matter
GR: Normally, the subject matters of CPM are interlocutory
orders, not final orders or judgment because in cases of final
orders or judgment, the proper remedy would be appeal.
XPN: Decisions that are immediately final and executory
may be the subject matter of CPM.
Example of Decisions that are Immediately Final and
Executory
1.
Considering the final nature of a small claims case
decision under Section 23 of the Rule of Procedure for
Small Claims Cases, the remedy of appeal is not
allowed, and the prevailing party may, thus, immediately
move for its execution. Nevertheless, the proscription on
appeals in small claims cases, similar to other
proceedings where appeal is not an available
remedy, does not preclude the aggrieved party from
filing a petition for certiorari under Rule 65 of the Rules
of Court (A.L. Ang Network, Inc. vs. Mondejar, G.R.
No. 200804, January 22, 2014).
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CIVIL PROCEDURE REVIEWER
2. Judgment on a Petition for Declaration of
Presumptive Death is immediately final and executory
and, hence, not subject to ordinary appeal (Republic
of the Philippines vs. Granada, G.R. No. 187512,
June 13, 2012).
Requisites for a Petition for Certiorari to Prosper
1. The writ is directed against a tribunal, a board or any
officer exercising judicial or quasi-judicial functions;
2. Such tribunal, board or officer has acted without or in
excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction;
and
3. There is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law – file a Motion
for Reconsideration, then file a Petition for Certiorari.
First Requisite: The writ is directed against a tribunal,
a board or any officer exercising judicial or quasijudicial functions
Functions of Respondent Tribunal, Board or Officer:
Certiorari did not lie against the Sangguniang Panglungsod
which was not a part of the Judiciary settling an actual
controversy involving legally demandable and enforceable
rights when it adopted Resolution No. 552, but a legislative
and policy-making body declaring its sentiment or opinion
(Yusay vs. CA, G.R. No. 156684, April 6, 2011).
With respect to the Supreme Court, however, the remedies
of certiorari and prohibition are necessarily broader in scope
and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by
a tribunal, corporation, board or officer exercising judicial,
quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions.
This application is expressly authorized by the text of the
second paragraph of Section 1 of Art. VIII of the 1987
Constitution. Thus, petitions for certiorari and prohibition are
appropriate remedies to raise constitutional issues and to
review and/or prohibit or nullify the acts of legislative and
executive officials (Araullo vs. Aquino III, G.R. No. 209287,
July 1, 2014).
1. Judicial Function – it consists of the power to
determine what the law is and what the legal
rights of the parties are and then undertake to
determine these questions and adjudicate upon
the rights of the parties.
Second Requisite: Such tribunal, board or officer has
acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or
excess of jurisdiction
2. Quasi-judicial Function – it applies to the action
or discretion of public administrative officers or
bodies, which are required to investigate facts or
ascertain the existence of facts, hold hearings,
and draw conclusions from them as basis for their
official action and to exercise discretion of a
judicial nature.
1. “Without jurisdiction” means that the court acted
with absolute lack of authority or want of legal
power, right or authority to hear and determine a
cause or causes, considered either in general or
with reference to a particular matter. It means
lack of power to exercise authority.
The petitioner here failed to show that the Secretary of
Justice was an officer exercising judicial or quasi-judicial
functions. Instead, the Secretary of Justice would appear
to be not exercising any judicial or quasi-judicial functions
because his questioned issuances were ostensibly
intended to ensure his subordinates’ efficiency and
economy in the conduct of the preliminary investigation of
all the cases involving the Legacy Group. The function
involved was purely executive or administrative
(Spouses Dacudao vs. Sec. of Justice, G.R. No.
186056, January 8, 2013).
The issuance of an executive order is not a judicial or
quasi-judicial act, therefore, a petition for certiorari is an
incorrect remedy. Instead, a petition for declaratory relief
under Rule 63 is the proper recourse to assail the validity
of an executive order (Galicto vs. Aquino, G.R. No. 193978,
February 28, 2012).
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Jurisdictional Errors
2. "Excess of jurisdiction" occurs when the court
transcends its power or acts without any statutory
authority; or results when an act, though within
the general power of a tribunal, board or officer
(to do) is not authorized, and invalid with respect
to the particular proceeding, because the
conditions which alone authorize the exercise of
the general power in respect of it are wanting.
3. "Grave abuse of discretion" implies that power is
exercised in an arbitrary or despotic manner by
reason of passion, prejudice, or personal hostility;
and such exercise is so patent or so gross as to
amount to an evasion of a positive duty or to a
virtual refusal either to perform the duty enjoined
or to act at all in contemplation of law. The abuse
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c.
of discretion must be grave for the writ of
certiorari to issue.
d.
e.
Error of Jurisdiction vs. Error of Judgment
Certiorari does not correct errors of judgment but only
errors of jurisdiction.
ERROR OF JURISDICTION
An error of jurisdiction is
one
where
the
act
complained of was issued by
the court without or in
excess of jurisdiction. It
occurs when the court
exercises a jurisdiction not
conferred upon it by law, or
when the court or tribunal
although with jurisdiction,
acts in excess of its
jurisdiction or with grave
abuse
of
discretion
amounting
to
lack
of
jurisdiction.
Correctible only
extraordinary writ
certiorari
by
the
of
ERROR OF JUDGMENT
An error of judgment is
one which the court may
commit in the exercise
of its jurisdiction. As
long as the court acts
within its jurisdiction, any
alleged errors committed
in the exercise of its
discretion will amount to
nothing more than mere
errors of judgment. Errors
of
judgment
include errors
of
procedure or mistakes
in the court‘s findings.
NOTE: Questions of facts
cannot be raised in an
action for certiorari.
Correctible by appeal
Third Requisite: There is no appeal or any plain,
speedy and adequate remedy in the ordinary course
of law.
Certiorari is a remedy of last resort. It is not available if the
party still has another speedy and adequate remedy
available.
A remedy is considered "plain, speedy and adequate" if it
will promptly relieve the petitioner from the injurious
effects of the judgment and the acts of the lower court or
agency.
f.
NOTE: Certiorari is not a substitute for a lost appeal.
GR: When the remedy by appeal had already been lost due
to petitioner’s own neglect or error in the choice of remedies,
certiorari cannot lie.
XPNs:
a.
b.
c.
d.
2.
GR: Since a motion for reconsideration is generally regarded
as a plain, speedy, and adequate remedy, the failure to first
take recourse to is usually regarded as fatal omission.
XPNs: However, there are exceptions, among these are:
a.
b.
c.
d.
e.
Appeal
Appeal and Certiorari are Mutually Exclusive
f.
GR: Where the proper remedy is appeal, the action for
certiorari will not be entertained.
g.
XPNs:
h.
a.
b.
When appeal does not constitute a speedy and
adequate remedy;
When orders were issued either in excess of or
without jurisdiction;
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Appeal is lost without the appellant’s
negligence;
When public welfare and the advancement of
public policy dictates;
When the writs issued are null and void; and
When the questioned order amounts to an
oppressive exercise of judicial authority.
Motion for Reconsideration
Examples of “plain, speedy and adequate” remedies:
1.
For certain special considerations as public
policy or public welfare;
When the order is a patent nullity;
When decision in the certiorari case will avoid
future litigation; and
When, in criminal actions, the court rejects
rebuttal evidence for the prosecution as in case
of acquittal, there could be no remedy.
Where the order is a patent nullity as where the
court a quo had no jurisdiction;
Where the questions raised in the certiorari
proceeding have been duly raised and passed
upon by the lower court;
Where there is an urgent necessity for the
resolution of the question and any further delay
would prejudice the interests of the
government;
Where under the circumstances, a motion for
reconsideration would be useless, as where the
court indicated that it will deny the Motion for
Reconsideration;
Where the petitioner was deprived of due
process and there is extreme urgency of relief;
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;
Where the proceedings in the lower court are a
nullity for lack of due process;
Where the proceeding was ex parte or in
which the petitioner had no opportunity to
object; and
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i.
Where the issue raised is one purely of law
or where public interest is involved.
Other Formal Requisites
1. The petition for certiorari must be verified.
2. It shall contain a prayer for the annulment or
modification of the proceedings and grant of such
incidental reliefs as law and justice may require.
3. The petition shall be accompanied by:
a. a certified true copy of the judgment, order or
resolution subject thereof,
b. copies of all pleadings and documents
relevant and pertinent thereto, and
c. a sworn certification of non-forum shopping
as provided in the paragraph of Section 3,
Rule 46.
SECTION 2: PROHIBITION
A Writ of Prohibition is a writ issued by a superior court
and directed against an inferior court, tribunal,
corporation, board, officer or other person, whether
exercising judicial, quasi-judicial or ministerial functions,
commanding it to desist from further proceedings, for the
purpose of preventing the latter from usurping jurisdiction
with which it is not legally vested.
NOTE: Prohibition lies against judicial or ministerial
functions, but not to legislative functions. It is available
against public officers who were appointed under an
unconstitutional legislative order (Regalado, 2010).
Certiorari, prohibition and mandamus do not generally lie,
subject to well-settled exceptions, against the legislative
and executive branches or the members thereof acting in
the exercise of their official functions, basically in
consideration of respect due from the judiciary to said
departments of co-equal and coordinate ranks under the
principle of separation of powers (Regalado, 2010).
Function of Prohibition
The function of prohibition is to prevent the unlawful and
oppressive exercise of legal authority and to provide for a fair
and orderly administration of justice. The writ of prohibition is
directed against proceedings that are done without or in
excess of jurisdiction, or with grave abuse of discretion, there
being no appeal or other plain, speedy and adequate remedy
in the ordinary course of law (Spouses Yusay vs. CA, G.R.
No. 156684, April 6, 2011).
undo an act already performed, where anything remains to
be done by the court, prohibition will give complete relief, not
only by preventing what remains to be done but by undoing
what has been done. Under some statutes, the court must
grant the appropriate relief whatever the proceeding is called
if facts stating ground for relief are pleaded (Aurillo vs. Rabi,
GR No. 120014, November 26, 2002).
Not a substitute for quo warranto
The writ of prohibition, even when directed against persons
acting as judges or other judicial officers, cannot be treated
as a substitute for quo warranto or be rightfully called upon
to perform any of the functions of that writ. If there is a court,
judge, or officer de facto, the title to the office and the right to
act cannot be questioned by prohibition.
If an intruder takes possession of a judicial office, the person
dispossessed cannot obtain relief through a writ of
prohibition commanding the alleged intruder to cease from
performing judicial acts, since in its very nature prohibition is
an improper proceeding by which to determine the title to an
office. And the writ of prohibition will not issue against a judge
de facto on the ground that the statute purporting to confer
authority upon the governor to appoint him is unconstitutional
(Nacionalista vs. De Vera, GR No. L-3474, December 7,
1949).
Requisites of Prohibition
1. Respondent is a tribunal, corporation, board or
person exercising judicial, quasi-judicial or
ministerial functions;
2. Respondent acted, is acting or is about to act
without or in excess of jurisdiction, or acted with
grave abuse of discretion amounting to lack or
excess of jurisdiction; and
3. There must be no appeal or other plain, speedy and
adequate remedy.
For grave abuse of discretion to be a ground for
prohibition, the petitioner must first demonstrate that the
tribunal, corporation, board, officer, or person, whether
exercising judicial, quasi-judicial or ministerial functions,
has exercised its or his power in an arbitrary or despotic
manner, by reason of passion or personal hostility, which
must be so patent and gross as would amount to an
evasion, or to a virtual refusal to perform the duty enjoined
or to act in contemplation of law.
Generally, the relief granted in a prohibition proceeding is
governed by the nature of the grievance proved and the
situation at the time of judgment.
On the other hand, the term excess of jurisdiction signifies
that the court, board, or officer has jurisdiction over a case
but has transcended such jurisdiction or acted without any
authority (Spouses Yusay vs. CA, G.R. No. 156684,
April 6, 2011).
Although the general rule is that a writ of prohibition issues
only to restrain the commission of a future act, and not to
In order that prohibition will lie against an executive
officer, the petitioner must first exhaust administrative
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remedies as prohibition is available only when there are
no other plain, speedy and adequate remedies in the
course of law (Regalado, 2010).
a.
When a motion to dismiss on the ground of improper
venue is erroneously denied, mandamus is not the
proper remedy for correcting the error. It being a case
where a judge is proceeding in defiance of the Rules of
Court by refusing to dismiss an action which should not
be maintained in his court, the remedy is prohibition
(Enriquez vs. Macadaeg, GR No. L-2422, September
30, 1949).
b.
Other Formal Requisites
1. Verified petition by the petitioner not by the
lawyer:
a. To contain alleged facts with certainty; and
b. Prayer that judgment be rendered
commanding the respondent from further
proceedings or grant such incidental reliefs
as law and justice requires.
2. Accompanied by a certified true copy of the
judgment, order or resolution subject thereof and
documents relevant and pertinent thereto or
duplicate original; and
3. Sworn certification against forum shopping as
provided in Rule 46, Section 3.
Prohibition Does Not Lie Against Expropriation
There can be no prohibition against a procedure whereby
the immediate possession of the land under expropriation
proceedings may be taken, provided always that due
provision is made to secure the prompt adjudication and
payment of just compensation to the owner. This bar
against prohibition comes from the nature of the power of
eminent domain as necessitating the taking of private land
intended for public use, and the interest of the affected
landowner is thus made subordinate to the power of the
State.
Only when the landowners are not given their just
compensation for the taking of their property or when
there has been no agreement on the amount of just
compensation may the remedy of prohibition become
available.
Acts Fait Accompli (Accomplished Facts)
GR: Prohibition is a preventive remedy. As such, it will not lie for
acts already accomplished.
XPNs:
1.
Courts will decide a question otherwise moot if it is
capable of repetition yet evading review, such as:
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2.
The question of constitutionality of the
President’s appointment of Department
Secretaries in an acting capacity while
Congress is in session.
The question of validity of a special election to
fill in a vacancy in the Senate in relation to
COMELEC’s failure to comply with
requirements on the conduct of such special
election.
Writ of prohibition will lie to prevent the unlawful
creation of a new province by those in the corridors of
power who could avoid judicial intervention and review
by merely speedily and stealthily completing the
commission of such illegality.
Prohibition vs. Injunction
PROHIBITION
INJUNCTION
DEFINITION
action
for
Prohibition is
an 1. Main
injunction seeks to
extraordinary writ
commanding a tribunal,
enjoin the defendant
corporation, board or
from the commission
person,
whether
or continuance of a
exercising judicial, quasispecific act, or to
judicial
or
ministerial
compel a particular
functions, to desist from
act in violation of the
further proceedings when
rights of the applicant.
said proceedings are
without or in excess of its 2. Preliminary injunction
jurisdiction, or with abuse
is
a
provisional
of its discretion, there
remedy to preserve
being no appeal or any
the status quo and
other plain, speedy and
prevent future wrongs
adequate remedy in the
in order to preserve
ordinary course of law
and protect certain
interests or rights
during the pendency
of an action.
NATURE
A special civil action It is an ordinary civil
under Rule 65. It is always action. It may be the main
the main action.
action itself or just a
provisional remedy.
PURPOSE
To
prevent
an For the defendant either
encroachment, excess, to refrain from an act or to
usurpation or assumption perform not necessarily a
of jurisdiction;
legal and ministerial duty
AGAINST WHOM DIRECTED
May be directed against Directed against a party
entities exercising judicial
or
quasi-judicial,
or
ministerial functions
SCOPE
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Extends to discretionary
and ministerial functions
Does not necessarily
extend to ministerial,
discretionary or legal
functions
GROUNDS
It is based on the ground It does not involve the
that the court against jurisdiction of the court.
whom the writ is sought
had acted, is acting, or is
about to act without or in
excess of jurisdiction.
JUDGMENT
Commands respondent to May be either to compel
desist from proceeding in the defendant to do an act
the action.
or to restrain him from
doing such an act.
COURT WHICH HAS JURISDICTION
May be brought in the SC, May be brought in the
CA, Sandiganbayan, or in RTC
which
has
the RTC which has jurisdiction
over
the
jurisdiction
over
the territorial area where
territorial area where respondent resides.
respondent resides.
SECTION 3: MANDAMUS
Requisites
1. Respondent unlawfully neglects the performance
of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or
excludes another from the use and enjoyment of
a right or office to which such other is entitled; and
2. There is no other plain, speedy and adequate
remedy in the ordinary course of law (Rule 65,
Section 3, RoC).
Notes on mandamus:
1.
2.
3.
There must be a well-defined, clear legal right or
duty. The duty must be enjoined by law; hence, a
contractual duty cannot be enforced by mandamus.
Respondent must be exercising ministerial duty.
There is no other plain, speedy, and adequate
remedy in the ordinary course of law (Rule 65,
Section 3, RoC).
However, mandamus “will lie to compel discharge of the
discretionary duty itself but not to control the discretion to be
exercised. In other words, a mandamus can issue to require
action, but not specific action.”
Mandamus will not issue to control or review the exercise of
discretion of a public officer where the law imposes upon said
public officer the right and duty to exercise his judgment in
reference to any matter in which he is required to act (Calim
vs. Guerrero, GR No. 156527, March 5, 2007).
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When petition for mandamus is proper
A writ of mandamus will not issue to control the exercise of
official discretion or judgment, or to alter or review the action
taken in the proper exercise of the discretion of judgment, for
the writ cannot be used as a writ of error or other mode of
direct review (Lamb v. Phipps, G.R. No. L-7806, July 12,
1912).
Mandamus is a proper recourse for citizens who seek to
enforce a public right and to compel the performance of a
public duty, most especially when mandated by the
Constitution. Thus, a party to a case may demand
expeditious action from all officials who are tasked with the
administration of justice (Endona v. Ombudsman, GR No.
174902-06, February 15, 2008).
However, in extreme situations generally in criminal cases,
mandamus lies to compel the performance of the fiscal of
discretionary functions where his actuations are tantanmount
to a willful refusal to perform a required duty (1 Regalado
804, 2010 Ed.)
Grounds
When any tribunal, corporation, board, officer or person
unlawfully
1. Neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or
2. Excludes another from the use and enjoyment of a
right or office to which such other is entitled (Rule
65, Section 3, RoC).
Mandamus is the proper remedy when the respondent
unlawfully excludes the petitioner from a public office,
position or franchise to which the latter is entitled without
usurping, intruding into or unlawfully holding the office.
However, if the respondent claims any right to the office and
usurps, intrudes into or unlawfully holds it against the
petitioner, quo warranto is the proper remedy.
Ministerial act or duty
Q: What is the nature of a writ of mandamus? What does a
ministerial act or duty mean?
A: It is a writ that commands the performance of a purely
ministerial duty imposed by law. A duty is ministerial when it
demands no special judgment, discretion and is a simple and
definite duty imposed by law.
Discretionary acts not compellable by mandamus
Mandamus does not lie to compel the performance of a
discretionary duty. It will not issue to control or review the
exercise of discretion of a public officer where the law
imposes upon said officer the right and duty to exercise his
judgment in reference to any matter in which he is required
to act.
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It is an appropriate remedy to compel the payment of the
benefits to which an employee is entitled under the law
such as holiday pay.
Reconstitution is not a ministerial act. It involves the
exercise of discretion in the evaluation of the evidence
presented before it. How to rule on the admission of the
evidence cannot be compelled by mandamus.
It is not proper when the act against which it is directed is
one addressed to the discretion of the tribunal or officer.
It will not lie to order the court to decide in a particular
manner and for or against a litigant.
It is not available to direct the exercise of a judgment or
discretion in a particular way.
It is not proper against a school or an official with a duty
that involves the exercise of discretion like on matters of
admission of students.
It will not also lie to compel an academic institution to
allow the graduation of a student who has failed to comply
with the academic rules of the school.
Q: Does the writ require the exhaustion of administrative
remedies?
A: Yes. Prior resort to the exhaustion of administrative
remedies however is not required where the questions
raised are purely legal or when the respondent is
estopped from invoking the rule of exhaustion of
administrative remedies.
Mandamus will not lie to compel a prosecutor to file an
information.
It will lie to compel execution of a judgment because the
execution of a final and executory judgment is a matter of
right. However, for it to be issued, it is essential that
petitioner should have a clear legal right to the thing
demanded and it must be the imperative duty of the
respondent to perform the act required.
SECTION 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 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 (Rule 65, Section 4, RoC).
Concurrent Jurisdiction
The Supreme Court, Court of Appeals and the Regional
Trial Court have concurrent jurisdiction in actions for
certiorari, prohibition and mandamus, hence the need for
certification against forum shopping. However,
observance of the hierarchy of courts is still required.
Adherence to Hierarchy of Courts
In the absence of special reasons, the Supreme Court
although it has concurrent original jurisdiction with the Court
of Appeals and Regional Trial Court, will not take cognizance
of these petitions. This is especially true where the petition
involves questions of fact and may entail reception of
evidence (Regalado, 2010).
NOTE: A.M. 07-7-12-SC now provides that the petition may
be filed with the Sandiganbayan whether or not the same is
in aid of its appellate jurisdiction.
Mandamus will not lie to compel the performance of an
illegal act.
In election cases involving an act or omission of a Municipal
or Regional Trial Court, the petition shall be filed exclusively
with the COMELEC, in aid of its appellate jurisdiction.
Q: Are contractual obligations compellable by
mandamus?
SECTION 5: RESPONDENDTS AND COSTS IN
CERTAIN CASES
A: No, it cannot be availed of as a remedy to enforce
the performance of contractual obligations. No rule of
law is better settled than that mandamus does not lie to
enforce the performance of contractual obligations. It is
not intended to aid a plaintiff in the enforcement of a mere
contract right, or to take the place of other remedies
provided by law for the adjudication of disputed claims.
Where the petition 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 (Rule 65, Section
5, RoC).
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NOTE: In appeal by certiorari under Rule 45, public
respondents are not impleaded since the dispute is
actually between the contending parties in the case. On
the other hand, Rule 65 involves an original special civil
action specifically directed against the person, court,
agency or party a quo which had committed not only a
mistake of judgment but an error of jurisdiction, hence
they should be made public respondents in that action
brought to nullify their invalid acts (Regalado, 2010).
The private respondent being an indispensable party, his
non-inclusion would render the petition for certiorari
defective. The judge in certiorari proceedings is merely a
nominal or formal party (Regalado, 2010).
A person not a party to the proceedings in the trial court
or in the Court of Appeals cannot maintain an action for
certiorari in the Supreme Court to have the judgment
reviewed (Regalado, 2010).
The private respondent should appear and defend not
only in his own behalf but also in behalf of the public
respondent or respondents affected by the proceedings.
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 (Rule 65, Section
5, RoC).
appearance
NOTE: The order shall be issued only if the court finds that
the petition is sufficient in form and substance.
Such order shall be served on the respondents in such
manner as the court may direct together with a copy of the
petition and any annexes thereto (Rule 65, Section 6, RoC).
In petitions for certiorari before the Supreme Court and the
Court of Appeals, the provisions of section 2, Rule 56, shall
be observed. Before giving due course thereto, the court may
require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may
require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper (Rule 65,
Section 6, RoC).
SECTION 7: EXPEDITING PROCEEDINGS;
INJUNCTIVE RELIEF
Duty of private respondent
Public respondent;
exception
Instead of summons, the court shall issue an order requiring
the respondent or respondents to comment on the petition
within ten (10) days from receipt of a copy thereof.
not
required;
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 (Rule 65,
Section 5, RoC).
While there is nothing in the Rules that prohibits the
presiding judge of the court involved from filing his own
answer and defending his questioned order, the Supreme
Court has reminded judges of the lower courts to refrain
from doing so unless ordered by it (Regalado, 2010).
SECTION 6: ORDER TO COMMENT
Unlike in ordinary civil action, where the issuance and
service of summons follow the filing of the complaint, no
summons is issued in a petition for certiorari (Riano, pg.
227, 2019).
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Q: If a petition for certiorari is filed with a higher court against
an alleged grave abuse of discretion committed by a lower
court in the course of its proceedings, may the court below
suspend its proceedings in deference to the higher court?
A: No. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ
of preliminary injunction has been issued against the public
respondent from further proceeding in the case (Riano, pg.
224, 2019; Rule 65, Section 7, RoC).
The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction
for the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ
of preliminary injunction has been issued against the public
respondent from further proceeding in the case (Rule 65,
Section 7, RoC).
The mere filing of a petition for certiorari with a higher court
before the defendant files and serves his answer does not
stop the running of the period within which to file an answer
to the complaint (Riano, pg. 225, 2019).
The public respondent has the duty to proceed with the
principal case within 10 days from the filing of the petition for
certiorari with a higher court or tribunal, absent a TRO or a
WPI, or upon its expiration. Failure of the public respondent
to proceed with the principal case may be a ground for an
administrative charge (Riano, pg. 226, 2019).
SECTION 8: PROCEEDINGS AFTER COMMENT IS
FILED
After the comment or other pleadings required by the
court are filed, or the time for the filing thereof has expired,
the court has the following options: (a) hear the case, or
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CIVIL PROCEDURE REVIEWER
injunction for the preservation of the rights of the
parties (Rule 65, Section 7, RoC).
(b) require the parties to submit memoranda (Rule 65,
Section 8, RoC).
If after such hearing or submission of memoranda or the
expiration of the period for the filing thereof the court finds
that the allegations of the petition are true, it shall render
judgment for the relief prayed for or to which the petitioner
is entitled
The court, however, may dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly
for delay, or that the questions raised therein are too
unsubstantial to require consideration (Rule 65, Section
8, RoC).
The court need not conduct a hearing. Instead, it may
require the filing of memoranda, unless it finds a hearing
necessary (Riano, pg. 228, 2019).
Grounds for dismissal of the petition
1. The petition is found to be patently without merit;
2. The petition is prosecuted manifestly for delay;
3. The questions raised in the petition are too
unsubstantial to require consideration (Rule 65,
Section 8, RoC).
SECTION 9: SERVICE AND ENFORCEMENT OF
ORDER OR JUDGMENT
A certified copy of the judgment rendered in accordance
with the last preceding section shall be served upon the
court, quasi-judicial agency, tribunal, corporation, board,
officer or person concerned in such manner as the court
may direct, and disobedience thereto shall be punished
as contempt. An execution may issue for any damages or
costs awarded in accordance with section 1 of Rule 39
(Rule 65, Section 9, RoC).
Where the higher court finds that the lower court was in
error, ordinarily the case is remanded to the lower court
for further appropriate proceedings. However, it may
render judgment on the merits without remand of the case
where the facts revealed by the pleadings clearly show
that the petitioner is entitled to the relief prayed for.
Thus, in a certiorari case where the lower court rendered
a default judgment for an amount much higher than that
authorized by the Rules, the Supreme Court decided the
case on the merits instead of remanding the same, since
certiorari is also equitable in character, (Regalado, 2010).
Reliefs petitioner is entitled to:
1.
Court may issue orders expediting the
proceedings, and it may also grant a temporary
restraining order or a writ of preliminary
2.
Incidental reliefs as law and justice may require
(Rule 65, Sections 1 and 2, RoC).
3.
Other reliefs prayed to which the petitioner is
entitled (Rule 65, Section 8, RoC).
Prayers:
1.
That the 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
2.
To pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent (Rule
65, Section 3, RoC).
RULE 66: QUO WARRANTO
Literally means “by want authority”, is a prerogative
proceeding or writ issued by the court to determine the right
to the use or exercise of an office, position or franchise and
to oust the person holding or exercising such office, position
or franchise if his right is unfounded or if he had forfeited his
right to enjoy the privilege. Where the action is filed by a
private person, he must prove that he is entitled to the
controverted position; otherwise respondent has the right to
undisturbed possession of the office (Velasco v. Belmonte,
G.R. No. 211140, January 12, 2016).
SECTION 1: ACTION BY GOVERNMENT AGAINST
INDIVIDUALS
Action by government against individuals
Against whom may the action be brought: (UFA)
1. A person who Usurps, intrudes into, or unlawfully
holds or exercises a public office, position or
franchise;
2. A public officer who does or suffers an act which, by
provision of law, constitutes a ground for the
Forfeiture of his office; or
3. An Association which acts as a corporation within
the Philippines without being legally incorporated or
without lawful authority so to act.
A person who usurps, intrudes into, or unlawfully holds
or exercises a public office, position or franchise
In the quo warranto case against the former Chief Justice
Sereno, the Solicitor General based its action on the
incomplete submission of the CJ’s SALNs required of her,
thus she had no right to be appointed as the Chief Justice.
Non-aplication to usurpation in private corporation
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It does not apply to quo warranto cases against persons
who usurp an office in a private corporation. The Interim
Rules of Procedure Governing Intra-Corporate
Controversies under R.A. No. 8799 would be the
applicable rule (Callega v. Panday, G.R. No. 168696,
February 28, 2006).
Sereno, an impeachable officer, through a Petition for Quo
Warranto. The Supreme Court ruled in the affirmative
arguing the following:
1.
The Supreme Court is expressly authorized by the
Constitution. Under Sec. 5, Article 8, 1987
Constitution, the Supreme Court exercises original
jurisdiction over xxx quo warranto cases. The said
provision does not limit the Supreme Court’s quo
warranto jurisdiction only to certain public officials or
that excludes impeachable officials.
2.
The Supreme Court’s quo warranto jurisdiction over
impeachable officers also finds basis in par. 7, Sec. 4,
Article 7 of the 1987 Constitution which designated
the Supreme Court as the sole judge of the
qualifications of the President and Vice-President, both
of whom are impeachable officers. With this authority,
the remedy of quo warranto was provided in the rules of
the court seating as the Presidential Electoral Tribunal
(PET).
A public officer who does or suffers an act which, by
provision of law, constitutes a ground for the
forfeiture of his office
Quo warranto is the remedy to try disputes with respect to
the title to a public office. Where, however, there is no
dispute as to who has the title to the public office but the
adverse party, without lawful ground, prevents the rightful
occupant from assuming the office, mandamus is the
remedy to oust the usurper. (Lota v. CA, G.R. No. L14803, June 30, 1961)
Quo warranto and Election contest; Distinguished
QUO WARRANTO
ELECTION CONTEST
BASIS
The
occupant
is It challenges the right of a
disqualified from holding person to hold office on
the office by reason of the ground of irregularities
ineligibility or disloyalty.
in the conduct of the
elections for said office
(Falcotelo v. Gali, G.R.
No. L-24190, January 8,
1968).
EFFECT
If
the
proceeding If
the
proceeding
succeeds, the respondent succeeds, the successful
will be ousted but the protestant will assume the
petitioner will not assume office if he had obtained a
the office.
plurality of the valid votes.
Sereno argued that (1) quo warranto petitions may be
filed against the President and Vice President under the
PET rules only because the Constitution specifically
permits them under Section 4 Article 7; and that (2) no
counterpart provision exists in the Constitution giving
the same authority to the Court over the Chief Justice,
and that the Constitution made a distinction between
elected and appointive impeachable officials.
As regards the first argument, the Supreme Court
stated that Sereno’s argument acknowledges that the
Constitution in fact allows quo warranto actions against
impeachable officers, albeit it is limited to the President
and Vice President. This admission refutes the very
position taken by Sereno that all impeachable
officers cannot be sued through quo warranto
because they belong to a “privileged class” of officers
who can be removed only through impeachment.
Quo warranto actions in elective and appointive
offices; Distinguished
ELECTIVE OFFICES
The issue is the eligibility
of the respondent.
The occupant who was
declared ineligible or
disloyal will be unseated
but the petitioner will not
be declared the rightful
occupant of the office.
APPOINTIVE OFFICES
The issue is the validity of
the appointment.
The court will oust the
person illegally appointed
and will order the seating
of the person who was
legally appointed and
entitled to the office
(Nuval v. Guray, 52 Phil.
653; Gaerlan v. Catubig,
G.R. No. L-23964, June
1, 1966).
In Republic v. Sereno, G.R. No. 237428, June 19, 2018,
one of the issues raised is whether or not the Supreme
Court has jurisdiction to out the former Chief Justice
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As regards the second argument, the authority to hear
quo warranto under the Constitution is without
qualification as to the class of public officers.
3.
The Supreme Court has previously taken cognizance
of quo warranto petitions challenging an impeachable
officer’s title to office.
In the consolidated cases of Estrada v. MacapagalArroyo and Estrada v. Desierto, the SC assumed
jurisdiction over a quo warranto petition that challenged
Macapagal-Arroyo’s title to the presidency.
In the consolidated Estrada cases, the SC ruled that the
case was dismissed not because the SC had no
jurisdiction over the quo warranto petition, but because
Estrada’s challenge to Macapagal-Arroyo’s presidency
had no merit. The SC had undeniably exercised its
jurisdiction under Sec. 5 (1), Article 8. The consolidated
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CIVIL PROCEDURE REVIEWER
Estrada cases demonstrates that the SC’s quo
warranto jurisdiction extends to impeachable officers.
4. Sec. 2, Article 11 (prescribing the grounds for
impeachment) of the 1987 Constitution does not
preclude a quo warranto action to question an
impeachable officer’s qualification.
Sec. 2, Article 11 provides that impeachable officers
may be removed from office on impeachment for and
conviction of culpable violation of the Constitution,
treasons, bribery, graft and corruption, other high
crimes, or betrayal of public trust. Lack of
qualifications for appointment or election is evidently
not among the stated grounds for impeachment, but
it is among the grounds for a quo warranto.
To take appointments of impeachable officers
beyond the reach of judicial review is to cleanse them
of any possible defect pertaining to the
constitutionally prescribed qualifications which
cannot otherwise be raised in an impeachment
proceeding.
An association which acts as a corporation within the
Philippines without being legally incorporated or
without lawful authority so to act
b.
Upon complaint or otherwise he has good reason to
believe that the cases for quo warranto can be
established by proof.
Upon complaint or otherwise he has good reason to
believe that the cases for quo warranto can be
established by proof
This was the reason why the Solicitor General filed a quo
warranto petition against former Chief Justice Sereno.
Using this as basis, the Solicitor General can file a petition
for quo warranto on his own, without being directed by the
President of the Philippines.
SECTION 3: WHEN SOLICITOR GENERAL OR
PUBLIC PROSECUTOR MAY COMMENCE ACTION
WITH PERMISSION OF COURT
Discretionary Quo Warranto Proceeding
Brought by the Solicitor General or a public prosecutor at the
request or upon the relation of another person, provided
there must be:
a.
b.
Leave of court; and
Indemnity bond.
Indemnity bond
In the quo warranto case against ABS-CBN, the Solicitor
General based its action on the alleged violation of its
franchise.
Refers to an association which exercises corporate
functions or powers although it has not been legally
incorporated. In the case of a legally incorporated
entity, the quo warranto action is now governed by the
Corporation Code.
NOTE: The Solicitor General, in the exercising of sound
discretion, may suspend or tum down the institution of an
action for quo warranto where there are just and valid
reasons. Upon receipt of a case certified to him, the
Solicitor General may start the prosecution of the case by
filing the appropriate action in court or he may choose not
to file the case at all. The Solicitor General is given
permissible latitude within his legal authority in actions
for quo warranto, circumscribed only by the national
interest and the government policy on the matter at hand
(Republic v. Sereno, G.R. No. 237428, May 11, 2018).
SECTION 2: WHEN SOLICITOR GENERAL OR
PUBLIC PROSECUTOR MUST COMMENCE ACTION
Mandatory Quo Warranto Proceeding
Brought by the Solicitor General or a public prosecutor,
when:
a. Directed by the President of the Philippines;
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The officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved by
and to be deposited in the court by the person at whose
request and upon whose relation the same is brought.
SECTION 5: WHEN AN INDIVIDUAL MAY
COMMENCE SUCH AN ACTION
A person 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 proceeding in his own behalf, under Sec. 5,
does not have to secure the intervention of the Solicitor
General or the fiscal, nor does he have to obtain prior
leave of court. However, petitioner must aver and be
able to show that he is entitled to office. By analogy
with the provision of Sec. 5, it has been held that a public
utility may bring a quo warranto action against another
public utility which has usurped the rights of the former
granted under a franchise (Cui v. Cui, G.R. No. 39773,
April 9,1934).
In quo warranto, the petitioner who files the action in his
name must prove that he is entitled to the subject public
office. In other words, the private person suing must show
a clear right to the contested position. Otherwise, the
person who holds the same has a right to undisturbed
possession and the action for quo warranto may be
dismissed (Arquero v. CA, G.R. No. 168053, September
21, 2011).
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CIVIL PROCEDURE REVIEWER
Who may Commence?
The Government through Solicitor General or public
prosecutor may commence an action for quo warranto. It
may also be commenced by an individual claiming to be
entitled to a public office or position usurped or unlawfully
held or exercised by another.
GR: Quo warranto is commenced by the Government as
the proper party plaintiff.
The Solicitor General or the public prosecutor may
commence a quo warranto action:
1. When directed by the President;
2. When he has good reason to believe that he can
establish a case under the grounds in Secs. 1
and 2; and
3. At the request and upon the relation of another
person (ex. relations) but, in this case, leave of
court must first be obtained, and may also
require an indemnity bond from the relator.
A relator is a person at whose request and upon
whose relation the Solicitor General or public
prosecutor brings an action for quo warranto with the
permission of the court under Secs. 3 and 4.
A private relator does not need to allege and show
that he is entitled to the office in dispute. However, if
he can show that he is entitled to the public office
allegedly usurped by another, he can bring an action
in his own name.
XPN: When a person claims to be entitled to the public
office allegedly usurped by another in which case, he can
bring the action in his own name. He need not secure the
permission of the Solicitor General or the Fiscal. The
petitioner does not even need to obtain prior leave of
court. The petitioner is allowed to file it in his name. The
petition however must allege and show that he is entitled
to the office in dispute (unlike in Secs. 2 & 3). If the
petitioner failed to show that he is entitled to the office,
then the petition must be dismissed.
Action filed by an Individual and an Action filed by the
Solicitor
General,
or
Public
Prosecutor;
Distinguished
ACTION BY A PRIVATE
INDIVIDUAL
It is necessary for the
petitioner to prove his
right to the office in
dispute. Otherwise, the
court shall not pass on the
ACTION BY THE
SOLICITOR GENERAL
OR PUBLIC
PROSECUTOR
Not necessary that there
be a person claiming to be
entitled to the office
alleged to have been
usurped, thus the duty of
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right of the defendant in
the office. (Topacio v.
Ong, G.R. No. 179895,
December 18, 2008)
the court is to pass upon
the right of the defendant
only.
If a plaintiff’s right to file the complaint is not proven, it
becomes unnecessary for the Court to pass upon the right of
the defendant who has a perfect right to the undisturbed
possession of his office. However, if the complaint is
brought by the Solicitor General or public prosecutor,
the Court may pass upon the defendant’s right to office.
SECTION 4: WHEN HEARING HAD ON APPLICATION
FOR PERMISSION TO COMMENCE ACTION
Upon application for permission to commence such action in
accordance with the next preceding section (Section 3 –
When Solicitor General or public prosecutor may commence
action with permission of the court), the Court shall direct that
notice be given to respondent so that he may be heard in
opposition.
If permission is granted:
1.
2.
Court shall issue an order to that effect, served to
the parties, and
Petition shall be filed within the period ordered by
the court.
SECTION 6: PARTIES AND CONTENTS OF PETITION
AGAINST USURPATION
Contents of the Petition: (ANA)
1.
2.
3.
Averment of his right to office/position/franchise;
NOTE: Without such averment or evidence of such
right, the action may be dismissed at any stage
(Feliciano v. Villasin, G.R. No. 174929, June 27,
2008).
Name of the person who claims to be entitled
thereto, if any;
Allegation that respondent is unlawfully in
possession thereof.
Who may be made respondents?
All persons who claim to be entitled to the public office,
position, or franchise (the usurper).
SECTION 7: VENUE
Venue
The quo warranto petition can be brought only in the:
1. Supreme Court;
2. Court of Appeals; or
3. Regional Trial Court exercising jurisdiction over
the territorial area where respondents reside.
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Election Law
If the Solicitor General commences the action, it may be
brought in the:
1.
2.
3.
Regional Trial Court in the City of Manila;
Court of Appeals; or
Supreme Court.
When direct invocation of the SC’s jurisdiction may be
had
The SC have concurrent jurisdiction with the CA and RTC to
issue the extraordinary writs, including quo warranto. A direct
invocation of the SC’s original jurisdiction to issue such writs
is allowed when there are special and important reasons
therefor, and in this case, direct resort to SC is justified
considering that the action is directed against the Chief
Justice (Republic v. Sereno, G.R. No. 237428, June 19,
2018).
Quo Warranto in Sandiganbayan
P.D. 1606, as amended by R.A. 8249, Sec. 4 provides that a
quo warranto petition may be brought in the Sandiganbayan
with regard to cases arising from E.O. Nos. 1, 2, 3, 14, and
14-A.
Quo Warranto under the Omnibus Election Code
The Omnibus Election Code provides that a petition for quo
warranto may be brought either in the:
1.
2.
3.
Commission on Elections;
Regional Trial Court; or
Municipal Trial Court.
Sec. 253 of the Omnibus Election Code provides that:
1.
2.
Any voter contesting the election of any Member of the
Batasang Pambansa, regional, provincial, or city officer
on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for
quo warranto with the Commission on Elections within
ten days after the proclamation of the results of the
election.
Any voter contesting the election of any municipal or
barangay officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Regional Trial
Court or Metropolitan or Municipal Trial Court,
respectively, within ten days after the proclamation of
the results of the el