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Ad maiorem Dei gloriam.
GRACE ANN Q. BAJO
TIMOTHY JACOB J. PALAFOX
20 21 C H AI R PE R S O N S
KATHLEEN KAE Z. ENDOZO
ARISTEO RAPHAEL T. MARBELLA III
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 21 AD MI NI ST R A TI V E CO M MI T TE E HE A D S
20 21 A C AD E MI C C O M MI T TE E HE AD S
CARLOS ROSAURO N. MANALO
MA. CRISTINA ASUNCION
20 21 A C AD E MI C C O M MI T TE E U N D E R ST U D I E S
JUSTICE MAGDANGAL M. DE LEON
ATTY. AXEL RUPERT M. CRUZ
ATTY. ERDELYNE C. GO
ATTY. CARLOS LOPEZ
20 21 R E ME D I AL LA W F A CU L TY A D V I S E R S
JASON DON S. DIZON
JAMES PATRICK L. URQUIOLA
JAIMS GABRIEL L. ORENCIA
LESLIELYN L. NGO
20 21 R E ME D I AL LA W SU BJE CT HE AD S
LOUIE EMMANUEL G. PAGTAKHAN
STEFFI GAYLE C. BULLECER
STEFFI MARTINA S. VALLE
JENWIN ELLA M. BACCAY
20 21 R E ME D I AL LA W U ND E R S TU D I E S
NADINE ONG
MARIA JOSEFINA CONCIO
NORBERTO SARIGUMBA III
ANGELICA OIDEM
JAMES ANDREW ESPIRITU
ROSEANNE REALUBIN
PATRICIA JOY IGNACIO
RACHEL LEIGH COLLADO
STEPHANIE SERAPIO
RAYMIELLE MAGCALAS
JEFFREY ABRAZALDO
JONATHAN TORRES
MARC ANGELO GUIBONE
LORIEDEL FAJARDO
ISABELLA SABIO
SHAULA FLORESTA
SAMANTHA ROSE MORALES
VERA DE VERA
CAMILLE BULATAO ANA SAMANTHA ISABELA PARUNGAO
MIKKO RINGIA
20 21 R E ME D I AL LA W V OLU NTE E R S
JONATHAN DF. TORRES
GAEL PAULINE R. MORALES
RIA ALEXANDRA D. CASTILLO
NICOLE ANN C. PAGLICAWAN
JULIANNE BEATRICE N. ROSARIO
20 21 C R E ATI V E S
JOSEPH BILL P. QUINTOS
SAMANTHA J. MAGAOAY
FREEDOM JUSTIN B. HERNANDEZ
STEFI MONIKA S. SUERO
KATHLEEN C. ROMINA
SERMAE ANGELA G. PASCUAL
20 21 TE C H NI CA L
2 02 1 FI N AN CE
AINA RAE L. CORTEZ
LUMINA ALINEA O. AQUINO
ANNA MARIE GRACE M. ANTONIO
MARY STEPHANIE CABRERA CRUZ
CLARISSE MAE D. ZAPLAN
CHRISTIAN GIO R. SENARLO
MAEDEN M. BORCELANGO
IMI LIZA B. ESPINA
FRANCIS SABIN BELTRAN
ANTHONY JEFFERSON Y. JULIO
20 21 S PE CI AL P R OJ E C TS
20 21 LO GI STI C S
DONN MARIE ISABELLE BALINA
ALISHA BEATRICE A. VERGARA
PRISHA LEIGH D. CRUZ
ALITHEA C. SORIANO
AARON C. CHENG
MELISSA GABRIELLE P. REMULLA
GRACIELLA RACHEL D. ROBLES
DANELLA DIANE D. DIMAPILIS
REYNALDO M. REVECHE
CZAREANA JOUSCH T. PARRA
20 21 M AR K E TI N G
20 21 PU BLI C R E L A TI ON S
JUSTIN LUIGI V. HERNANDEZ
20 2 0 C HAI R P E R SO N
YVES PETER CARLO D. MEDINA
KATRINA ISABELLE G. PIMENTEL
GENICA GALE F. LAHOZ
THERESE ANNE C. ESPINOSA
HAZEL VIANCA I. ORTEGA
VINCE ZYRENCE T. BARLONGAY
20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S
20 2 0 HO TE L C O M MI TTE E HE A D S
EUNICE A. MALAYO
FRANCES CHRISTINE P. SAYSON
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 2 0 A CAD E MI C CO M MI T TE E HE AD S
2 02 0 A CA D E M I C CO M MIT T E E U N D E R S T U DI E S
JUSTICE MAGDANGAL M. DE LEON
ATTY. AXEL RUPERT M. CRUZ
ATTY. ERDELYNE C. GO
ATTY. CARLOS LOPEZ
20 2 0 R E ME D I AL L A W F A CU L TY A D V I S E R S
BRYAN GEORGE M. MANZANO
ALGA MAE V. SAN DIEGO
ROWELL NICO S. MACALINO
REI LUIS ANTON A. DOMINGO
20 2 0 R E ME D I AL L A W SU BJE CT HE AD S
JASON DON S. DIZON
JAMES PATRICK L. URQUIOLA
JAIMS GABRIEL L. ORENCIA
20 2 0 R E ME D I AL L A W U ND E R S TU D I E S
ISABELLA SABIO
ANNA BEATRICE, L. SALAZAR
SOFIA GATCHALIAN
APRILLE VINCIE P. TAGUDAR
DOROTHY DULNOAN
IRISH SELENE S. AQUINO
ROSEANNE REALUBIN
AILEEN LOVE H. REYES
MARIA
ANGELICA TORIO
LORIEDEL FAJARDO
KRISTINE MAE D. MEDEL
SHIKYNA CASTILLO
JEBEL DHANNA C. CLAUDIO
SIEGFRED G. PEREZ
SAMANTHA ROSE K. MORALES
LESLIELYN L. NGO
JEFFREY ROGER T. ABRAZALDO
20 2 0 R E ME D I AL L A W V OLU NTE E R S
ANDREA RIOFLORIDO
CLEON MAGAYANES
VICTORIA CHANG
RIZZA MATIONG
REM GUEVARRA
ZEKE GARCIA
VEYA JOSEF
JUNE LIM
ATENEO CENTRAL
REMEDIAL LAW
BAR OPERATIONS 2020/21
TABLE OF CONTENTS
I. GENERAL PRINCIPLES .......................................................................................................................................... 2
A. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW...................................................................... 2
B. RULE-MAKING POWER OF THE SUPREME COURT.......................................................................................... 3
1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT....................................................... 3
2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES ...................................... 3
C. NATURE OF PHILIPPINE COURTS .................................................................................................................... 4
1. MEANING OF A COURT................................................................................................................................ 4
2. DISTINGUISH: COURT AND JUDGE ............................................................................................................... 4
3. CLASSIFICATION OF PHILIPPINE COURTS...................................................................................................... 5
4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION ................................................................................. 5
5. COURTS OF GENERAL AND SPECIAL JURISDICTION ....................................................................................... 6
6. CONSTITUTIONAL AND STATUTORY COURTS ............................................................................................... 6
7. COURTS OF LAW AND EQUITY ..................................................................................................................... 6
8. PRINCIPLE OF JUDICIAL HIERARCHY ............................................................................................................. 7
9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY .................................................... 7
II. JURISDICTION .................................................................................................................................................. 10
A. CLASSIFICATION OF JURISDICTION ............................................................................................................... 11
1. DISTINGUISH: ORIGINAL AND APPELLATE .................................................................................................. 11
2. DISTINGUISH: GENERAL AND SPECIAL........................................................................................................ 11
3. DISTINGUISH: EXCLUSIVE AND CONCURRENT ............................................................................................ 11
B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION............................................... 11
(ADHERENCE OF JURISDICTION) ....................................................................................................................... 11
C. JURISDICTION OF VARIOUS PHILIPPINE COURTS .......................................................................................... 12
D. ASPECTS OF JURISDICTION........................................................................................................................... 26
1. JURISDICTION OVER THE PARTIES .............................................................................................................. 26
2. JURISDICTION OVER THE SUBJECT MATTER ............................................................................................... 26
3. JURISDICTION OVER THE ISSUES ................................................................................................................ 31
4. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION........................................................................ 31
5. JURISDICTION OVER THE REMEDIES .......................................................................................................... 31
E. DISTINGUISH: ERROR OF JURISDICTION VS. ERROR OF JUDGMENT .............................................................. 32
F. JURISDICTION VS. VENUE ............................................................................................................................. 32
G. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION............................................................................................................................... 32
H. HOW JURISDICTION IS DETERMINED ........................................................................................................... 35
III. CIVIL PROCEDURE ........................................................................................................................................... 37
A. GENERAL PROVISIONS ................................................................................................................................. 41
B. ACTIONS ...................................................................................................................................................... 41
1. MEANING OF ORDINARY CIVIL ACTIONS .................................................................................................... 41
2. MEANING OF SPECIAL CIVIL ACTIONS ........................................................................................................ 41
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3. MEANING OF CRIMINAL ACTIONS.............................................................................................................. 41
4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS .......................................................................................... 42
5. PERSONAL ACTIONS AND REAL ACTIONS ................................................................................................... 42
6. LOCAL AND TRANSITORY ACTIONS ............................................................................................................ 42
7. ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM ............................................................................... 42
C. CAUSE OF ACTION ........................................................................................................................................ 44
1. MEANING OF CAUSE OF ACTION ............................................................................................................... 44
2. DISTINGUISH: RIGHT OF ACTION AND CAUSE OF ACTION........................................................................... 44
3. DISTINGUISH: FAILURE TO STATE A CAUSE OF ACTION AND LACK OF CAUSE OF ACTION ............................ 45
4. TEST OF SUFFICIENCY OF A CAUSE OF ACTION ........................................................................................... 45
5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS........................................................................... 46
6. JOINDER AND MISJOINDER OF CAUSES OF ACTION .................................................................................... 47
D. PARTIES TO CIVIL ACTION ............................................................................................................................ 47
1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES;
INDIGENT PARTIES; ALTERNATIVE DEFENDANTS............................................................................................ 48
2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES ............................................................................... 53
3. MISJOINDER AND NON-JOINDER OF PARTIES............................................................................................. 54
4. CLASS SUIT ................................................................................................................................................ 54
5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY ..................................................................... 55
6. EFFECT OF DEATH OF PARTY LITIGANT ...................................................................................................... 55
E. VENUE .......................................................................................................................................................... 57
1. VENUE OF REAL ACTIONS .......................................................................................................................... 57
2. VENUE OF PERSONAL ACTIONS ................................................................................................................. 58
3. VENUE OF ACTIONS AGAINST NON-RESIDENTS .......................................................................................... 58
4. WHEN THE RULES ON VENUE DO NOT APPLY ............................................................................................ 58
5. EFFECTS OF STIPULATIONS ON VENUE....................................................................................................... 59
F. PLEADINGS ................................................................................................................................................... 60
1. KINDS OF PLEADINGS AND WHEN SHOULD THEY BE FILED ......................................................................... 60
2. PLEADINGS ALLOWED IN SMALL CLAIMS CASES AND CASES COVERED BY THE RULE ON SUMMARY
PROCEDURE.................................................................................................................................................. 68
3. PARTS AND CONTENTS OF A PLEADING ..................................................................................................... 70
4. ALLEGATIONS IN A PLEADING .................................................................................................................... 75
5. EFFECT OF FAILURE TO PLEAD ................................................................................................................... 82
6. DEFAULT ................................................................................................................................................... 83
7. FILING AND SERVICE OF PLEADINGS .......................................................................................................... 87
8. AMENDMENT............................................................................................................................................ 98
G. SUMMONS ................................................................................................................................................ 102
1. NATURE AND PURPOSE OF SUMMONS.................................................................................................... 102
2. VOLUNTARY APPEARANCE ...................................................................................................................... 104
3. WHO MAY SERVE SUMMONS .................................................................................................................. 104
4. PERSONAL SERVICE (SERVICE IN PERSON ON DEFENDANT) ...................................................................... 105
5. SUBSTITUTED SERVICE ............................................................................................................................ 106
6. CONSTRUCTIVE SERVICE.......................................................................................................................... 107
7. EXTRATERRITORIAL SERVICE, WHEN ALLOWED........................................................................................ 108
8. SERVICE UPON PRISONERS AND MINORS; UPON SPOUSES ...................................................................... 109
9. SERVICE UPON DOMESTIC OR FOREIGN PRIVATE JURIDICAL ENTITY ........................................................ 109
10. PROOF OF SERVICE ................................................................................................................................ 111
H. MOTIONS................................................................................................................................................... 112
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1. MOTIONS IN GENERAL ............................................................................................................................ 112
2. MOTIONS FOR BILL OF PARTICULARS....................................................................................................... 115
I. DISMISSAL OF ACTIONS............................................................................................................................... 116
1. DISMISSAL WITH PREJUDICE.................................................................................................................... 116
2. DISMISSAL UPON NOTICE BY PLAINTIFF ................................................................................................... 117
3. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM ..................................... 118
4. DISMISSAL DUE TO FAULT OF PLAINTIFF .................................................................................................. 119
5. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT .......................................... 119
J. PRE-TRIAL ................................................................................................................................................... 119
1. CONCEPT OF PRE-TRIAL ........................................................................................................................... 119
2. NATURE AND PURPOSE ........................................................................................................................... 120
3. NOTICE OF PRE-TRIAL .............................................................................................................................. 121
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR ...................................................................... 121
5. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE .......................................................................................... 122
6. PRE-TRIAL ORDER.................................................................................................................................... 122
7. DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE AND PRE-TRIAL IN A CRIMINAL CASE ......................... 123
K. INTERVENTION........................................................................................................................................... 127
1. REQUISITES FOR INTERVENTION.............................................................................................................. 129
2. TIME TO INTERVENE................................................................................................................................ 129
3. REMEDY OF DENIAL OF MOTION TO INTERVENE...................................................................................... 129
L. SUBPOENA ................................................................................................................................................. 129
1. SUBPOENA DUCES TECUM ...................................................................................................................... 129
2. SUBPOENA AD TESTIFICANDUM .............................................................................................................. 129
3. SERVICE OF SUBPOENA ........................................................................................................................... 130
4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT.......................................................................... 130
5. QUASHING A SUBPOENA ......................................................................................................................... 131
M. COMPUTATION OF TIME ........................................................................................................................... 132
N. MODES OF DISCOVERY .............................................................................................................................. 132
1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL ............................ 133
2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES ................................................................................. 139
3. REQUEST FOR ADMISSION....................................................................................................................... 141
4. PRODUCTION AND INSPECTION OF DOCUMENTS OR THINGS .................................................................. 143
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS ............................................................................... 144
6. CONSEQUENCES OF REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY........................................... 145
O. TRIAL ......................................................................................................................................................... 147
1. ADJOURNMENTS AND POSTPONEMENTS ................................................................................................ 147
2. REQUISITES OF MOTION TO POSTPONE TRIAL ......................................................................................... 147
3. AGREED STATEMENT OF FACTS ............................................................................................................... 147
4. ORDER OF TRIAL; REVERSAL OF ORDER ................................................................................................... 148
5. CONSOLIDATION OR SEVERANCE............................................................................................................. 149
6. DELEGATION OF RECEPTION OF EVIDENCE .............................................................................................. 150
7. TRIAL BY COMMISSIONERS...................................................................................................................... 151
P. DEMURRER TO EVIDENCE .......................................................................................................................... 152
1. GROUNDS ............................................................................................................................................... 153
2. EFFECT OF DENIAL................................................................................................................................... 153
3. EFFECT OF GRANT ................................................................................................................................... 153
4. WAIVER OF RIGHT TO PRESENT EVIDENCE ............................................................................................... 154
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5. DISTINGUISH: DEMURRER TO EVIDENCE IN A CIVIL CASE AND DEMURRER TO EVIDENCE IN A CRIMINAL
CASE ........................................................................................................................................................... 154
Q. JUDGMENTS AND FINAL ORDERS .............................................................................................................. 155
1. JUDGMENT AFTER PRE-TRIAL .................................................................................................................. 155
2. JUDGMENT WITHOUT TRIAL.................................................................................................................... 156
3. JUDGMENT ON THE PLEADINGS .............................................................................................................. 156
4. SUMMARY JUDGMENT............................................................................................................................ 158
5. DISTINGUISH: JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS........................................... 160
6. CONTENTS OF A JUDGMENT.................................................................................................................... 160
7. RENDITION OF JUDGMENTS AND FINAL ORDERS ..................................................................................... 161
8. ENTRY OF JUDGMENT AND FINAL ORDER ................................................................................................ 162
R. POST-JUDGMENT REMEDIES ...................................................................................................................... 167
1. MOTION FOR NEW TRIAL OR RECONSIDERATION .................................................................................... 167
2. APPEALS................................................................................................................................................. 171
3. RELIEF FROM JUDGMENTS, ORDERS, AND OTHER PROCEEDINGS (Rule 38) .............................................. 201
4. ANNULMENT OF JUDMENTS AND FINAL ORDERS AND RESOLUTIONS (Rule 47)........................................ 203
5. COLLATERAL ATTACK OF JUDGMENTS ..................................................................................................... 206
S. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS .......................................................................... 206
1. DIFFERENCE BETWEEN FINAL JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION..... 206
2. WHEN EXECUTION SHALL ISSUE .............................................................................................................. 207
3. HOW JUDGMENT IS EXECUTED................................................................................................................ 211
4. PROPERTIES EXEMPT FROM EXECUTION.................................................................................................. 214
5. PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS; IN RELATION TO THIRD PARTY CLAIM IN
ATTACHMENT AND REPLEVIN ..................................................................................................................... 215
6. RULES ON REDEMPTION.......................................................................................................................... 218
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS SATISFIED................................................. 220
8. EXAMINATION OF DEBTORS OF THE JUDGMENT OBLIGOR....................................................................... 220
9. EFFECT OF JUDGMENT AND FINAL ORDERS ............................................................................................. 221
10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS............................................. 222
IV. PROVISIONAL REMEDIES .............................................................................................................................. 224
A. NATURE AND PURPOSE ............................................................................................................................. 225
B. JURISDICTION OVER PROVISIONAL REMEDIES ........................................................................................... 225
C. PRELIMINARY ATTACHMENT...................................................................................................................... 225
1. GROUNDS FOR ISSUANCE OF PRELIMINARY ATTACHMENT ...................................................................... 227
2. REQUISITES ............................................................................................................................................. 228
3. ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT; AFFIDAVIT AND BOND ...................................... 229
4. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS .......................................................... 230
5. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON............................................................................................................................................ 230
6. DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND ........................................................................ 233
7. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED .................................................................. 236
8. COMPARED WITH GARNISHMENT AND LEVY ON EXECUTION .................................................................. 237
D. PRELIMINARY INJUNCTION ........................................................................................................................ 241
1. DEFINITIONS AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (TRO),
AND STATUS QUO ANTE ORDER .................................................................................................................. 241
2. REQUISITES ............................................................................................................................................. 243
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3. KINDS OF INJUNCTIONS; KINDS OF TEMPORARY RESTRAINING ORDERS................................................... 247
4. WHEN WRIT MAY BE ISSUED, WHEN WRIT MAY NOT BE ISSUED .............................................................. 248
5. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION......................................................................... 249
6. GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER ...... 250
7. DURATION OF TEMPORARY RESTRAINING ORDERS.................................................................................. 250
8. RULE ON PRIOR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT ............... 252
E. RECEIVERSHIP ............................................................................................................................................ 254
1. CASES WHEN RECEIVER MAY BE APPOINTED ........................................................................................... 254
2. REQUISITES ............................................................................................................................................. 255
3. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER APPOINTING A RECEIVER............................................ 255
4. GENERAL POWERS OF A RECEIVER .......................................................................................................... 256
5. KINDS OF BONDS IN RECEIVERSHIP.......................................................................................................... 257
6. TERMINATION OF RECEIVERSHIP ............................................................................................................. 258
F. REPLEVIN.................................................................................................................................................... 258
1. WHEN MAY WRIT BE ISSUED ................................................................................................................... 259
2. REQUISITES ............................................................................................................................................. 259
3. AFFIDAVIT AND BOND; REDELIVERY BOND .............................................................................................. 259
4. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY 260
G. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL LAWS AND RULES .................................. 261
1. PROVISIONAL REMEDIES OF THE FAMILY COURTS (R.A. 8369) ................................................................. 261
2. HUMAN SECURITY ACT (R.A. 9372) .......................................................................................................... 262
3. ANTI-VIOLENECE AGAINST WOMEN AND CHILDREN ACT (R.A. 9262) ....................................................... 263
4. ANTI-MONEY LAUNDERING ACT (R.A. 9160, AS AMENDED) ..................................................................... 266
5. FINANCIAL REHABILITATION AND INSOLVENCY ACT (R.A. 10142) ............................................................. 267
6. PRECAUTIONARY HOLD DEPARTURE ORDERS .......................................................................................... 269
V. SPECIAL CIVIL ACTIONS .................................................................................................................................. 272
A. NATURE OF SPECIAL CIVIL ACTIONS ........................................................................................................... 273
B. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS ...................................................... 273
C. JURISDICTION AND VENUE ......................................................................................................................... 274
D. INTERPLEADER ........................................................................................................................................... 274
1. REQUISITES FOR INTERPLEADER .............................................................................................................. 274
2. WHEN TO FILE ........................................................................................................................................ 274
3. DISMISSAL............................................................................................................................................... 275
E. DECLARATORY RELIEF AND SIMILAR REMEDIES.......................................................................................... 275
1. WHO MAY FILE THE ACTION .................................................................................................................... 275
2. REQUISITES OF AN ACTION FOR DECLARATORY RELIEF ............................................................................ 276
3. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION ................................................................ 277
4. CONVERSION TO ORDINARY ACTION ....................................................................................................... 277
5. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES. ................................................................................ 278
F. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA .................... 278
1. DISTINCTION IN THE APPLICATION OF RULE 65 AS TO JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS ................................................ 279
G. CERTIORARI, PROHIBITION, AND MANDAMUS .......................................................................................... 281
1. DEFINITIONS AND DISTINCTIONS ............................................................................................................. 281
2. REQUISITES ............................................................................................................................................. 283
3. WHEN PETITION FOR CERTIORARI, PROHIBITION OR MANDAMUS IS PROPER .......................................... 285
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4. INJUNCTIVE RELIEF .................................................................................................................................. 288
5. DISTINGUISH: CERTIORARI, APPEAL BY CERTIORARI, AND ARTICLE VIII, SECTION 1 OF HE CONSTITUTION 288
6. DISTINGUISH: PROHIBITION, MANDAMUS, AND INJUNCTION .................................................................. 288
7. WHEN AND WHERE TO FILE PETITION ..................................................................................................... 289
8. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION ........................... 290
9. RELIEFS PETITIONER IS ENTITLED TO........................................................................................................ 290
10. ACTIONS OR OMISSIONS OF FIRST-LEVEL/REGIONAL TRIAL COURTS IN ELECTION CASES ........................ 290
11. WHERE TO FILE PETITION ...................................................................................................................... 290
12. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION........................................................................... 290
H. QUO WARRANTO ...................................................................................................................................... 291
1. DISTINGUISH: QUO WARRANTO UNDER THE RULES OF COURT AND QUO WARRANTO UNDER THE
OMNIBUS ELECTION CODE .......................................................................................................................... 292
2. WHEN GOVERNMENT COMMENCES AN ACTION AGAINST INDIVIDUALS OR ASSOCIATIONS..................... 292
3. WHEN INDIVIDUAL MAY COMMENCE AN ACTION .................................................................................. 293
4. JUDGMENT IN QUO WARRANTO ACTION ................................................................................................ 293
5. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE ................................................................ 294
6. LIMITATIONS........................................................................................................................................... 294
I. EXPROPRIATION.......................................................................................................................................... 294
1. MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION...................................................................... 295
2. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION.............................................................................. 295
3. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY ......................... 296
4. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION .............................................. 297
5. DEFENSES AND OBJECTIONS.................................................................................................................... 297
6. ORDER OF EXPROPRIATION ..................................................................................................................... 298
7. ASCERTAINMENT OF JUST COMPENSATION............................................................................................. 299
8. APPOINTMENT OF COMMISSIONERS; COMMISSIONERS’ REPORT; COURT ACTION UPON COMMISSIONERS’
REPORT ...................................................................................................................................................... 299
9. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT ......................................................................... 300
10. EFFECT OF RECORDING OF JUDGMENT .................................................................................................. 300
J. FORECLOSURE OF REAL ESTATE MORTGAGE............................................................................................... 301
1. KINDS OF FORECLOSURE ......................................................................................................................... 301
2. NEED FOR SPECIAL POWER OF ATTORNEY ............................................................................................... 302
3. AUTHORITY TO FORECLOSE EXTRAJUDICIALLY ......................................................................................... 302
4. PROCEDURE ............................................................................................................................................ 302
5. POSSESSION BY PURCHASER OF FORECLOSED PROPERTY ........................................................................ 305
6. REMEDY OF DEBTOR IF FORECLOSURE IS NOT PROPER ............................................................................ 306
7. REDEMPTION .......................................................................................................................................... 306
8. WRIT OF POSSESSION.............................................................................................................................. 309
9. ANNULMENT OF SALE ............................................................................................................................. 309
K. PARTITION ................................................................................................................................................. 309
1. WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS ....................................................... 310
2. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION ....................................................................... 311
3. TWO STAGES IN EVERY ACTION FOR PARTITION ...................................................................................... 311
4. ORDER OF PARTITION AND PARTITION BY AGREEMENT........................................................................... 311
5. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT................................................................................................... 312
6. JUDGMENT AND ITS EFFECTS .................................................................................................................. 313
7. PARTITION OF PERSONAL PROPERTY ....................................................................................................... 313
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8. PRESCRIPTION OF ACTION....................................................................................................................... 313
9. WHEN PARTITION IS NOT ALLOWED ........................................................................................................ 313
L. FORCIBLE ENTRY AND UNLAWFUL DETAINER ............................................................................................. 313
1. DEFINITIONS AND DISTINCTION............................................................................................................... 313
2. DISTINGUISH: FORCIBLE ENTRY, UNLAWFUL DETAINER, ACCION PUBLICIANA, AND ACCION
REINVINDICATORIA ..................................................................................................................................... 315
3. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA ................................................. 315
4. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM MAY THE ACTION BE MAINTAINED...... 315
5. PLEADINGS ALLOWED ............................................................................................................................. 317
6. ACTION ON THE COMPLAINT................................................................................................................... 317
7. WHEN DEMAND IS NECESSARY................................................................................................................ 317
8. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION .............................................. 317
9. RESOLVING DEFENSE OF OWNERSHIP ..................................................................................................... 318
10. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT................................................................... 318
11. PROHIBITED PLEADINGS AND MOTIONS ................................................................................................ 319
M. CONTEMPT ............................................................................................................................................... 319
1. KINDS OF CONTEMPT .............................................................................................................................. 319
2. PURPOSE AND NATURE OF EACH............................................................................................................. 319
3. REMEDY AGAINST DIRECT CONTEMPT; PENALTY ..................................................................................... 320
4. REMEDY AGAINST INDIRECT CONTEMPT; PENALTY .................................................................................. 321
5. HOW CONTEMPT PROCEEDINGS ARE COMMENCED ................................................................................ 321
6. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT .............................................................................. 321
7. WHEN IMPRISONMENT SHALL BE IMPOSED ............................................................................................ 322
8. CONTEMPT AGAINST QUASI-JUDICIAL BODIES ......................................................................................... 322
VI. SPECIAL PROCEEDINGS ................................................................................................................................. 324
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS ................................................... 327
1. WHICH COURT HAS JURISDICTION........................................................................................................... 327
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE ........................................................................................... 328
3. EXTENT OF JURISDICTION OF PROBATE COURT........................................................................................ 329
4. POWERS AND DUTIES OF PROBATE COURT.............................................................................................. 329
B. SUMMARY SETTLEMENT OF ESTATES......................................................................................................... 331
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED ................................... 331
2. TWO-YEAR PRESCRIPTIVE PERIOD ........................................................................................................... 332
3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR .................................................................................... 333
4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED ............................................... 333
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE ................................ 334
C. PRODUCTION AND PROBATE OF WILL........................................................................................................ 335
1. NATURE OF PROBATE PROCEEDING......................................................................................................... 335
2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE ....................................................... 336
D. ALLOWANCE OR DISALLOWANCE OF WILL................................................................................................. 337
1. CONTENTS OF PETITION FOR ALLOWANCE OF WILL ................................................................................. 338
2. GROUNDS FOR DISALLOWANCE OF WILL ................................................................................................. 339
3. REPROBATE............................................................................................................................................. 339
4. REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES ............................................ 339
5. EFFECTS OF PROBATE .............................................................................................................................. 340
F. LETTERS TESTAMENTARY AND OF ADMINISTRATION ................................................................................. 340
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1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED ............................................................ 340
2. ORDER OF PREFERENCE........................................................................................................................... 342
3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY, SIMULTANEOUS FILING OF PETITION FOR
ADMINISTRATION ....................................................................................................................................... 344
4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTION ON THEIR POWERS ............ 344
5.APPOINTMENT OF SPECIAL ADMINISTRATOR ........................................................................................... 346
6. GROUNDS FOR REMOVAL OF EXECUTORS AND ADMINISTRATORS........................................................... 348
F. CLAIMS AGAINST THE ESTATE .................................................................................................................... 349
1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS .................................................................... 351
2. STATUTE OF NON-CLAIMS ....................................................................................................................... 351
3.CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE ............................................................. 352
4. PAYMENT OF THE DEBTS OF THE ESTATE ................................................................................................. 352
G. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS .................................... 355
1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS .................................... 355
2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY FRAUDULENTLY
CONVEYED BY THE DECEASED ..................................................................................................................... 356
H. Distribution and Partition .......................................................................................................................... 357
1. LIQUIDATION .......................................................................................................................................... 357
2. PROJECT OF PARTITION ........................................................................................................................... 357
3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE .................................................. 357
4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION ..................................................... 357
I. TRUSTEES .................................................................................................................................................... 358
1. TRUSTEE DISTINGUISHED FROM EXECUTOR OR ADMINISTRATOR ............................................................ 359
2. CONDITIONS OF THE BOND ..................................................................................................................... 360
3. REQUISITES FOR REMOVAL AND RESIGNATION OF A TRUSTEE ................................................................. 360
4.GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE.................................................................... 360
5. EXTENT OF AUTHORITY OF TRUSTEE........................................................................................................ 360
J. ESCHEAT ..................................................................................................................................................... 361
1. WHEN TO FILE; THREE INSTANCES OF ESCHEAT ....................................................................................... 361
2. REQUISITES FOR FILING OF PETITION....................................................................................................... 362
3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM ........................................... 362
K. GUARDIANSHIP .......................................................................................................................................... 362
1. VENUE .................................................................................................................................................... 363
2. APPOINTMENT OF GUARDIANS ............................................................................................................... 363
3. GENERAL POWERS AND DUTIES OF GUARDIANS ...................................................................................... 365
4. TERMINATION OF GUARDIANSHIP ........................................................................................................... 367
5. RULE ON GUARDIANSHIP OVER MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003) .......................... 367
N. ADOPTION ................................................................................................................................................. 369
1. DOMESTIC ADOPTION V. INTER-COUNTRY ADOPTION ............................................................................. 369
2. DOMESTIC ADOPTION ............................................................................................................................. 372
3. INTER-COUNTRY ADOPTION .................................................................................................................... 375
M. WRIT OF HABEAS CORPUS ........................................................................................................................ 384
1. CONTENTS OF THE PETITION ................................................................................................................... 385
2. CONTENTS OF RETURN............................................................................................................................ 386
3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION ............................................................ 388
4. WHEN NOT PROPER/APPLICABLE ............................................................................................................ 388
5.WHEN WRIT DISALLOWED/ DISCHARGED ................................................................................................. 388
6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA ..................................................................... 389
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7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC) ............................................................................................................................... 389
N. WRIT OF AMPARO (A.M. No. 07-9-12-SC) .................................................................................................. 391
1. COVERAGE .............................................................................................................................................. 391
2. DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT ..................................................................... 392
3. WHO MAY FILE........................................................................................................................................ 393
4. CONTENTS OF RETURN............................................................................................................................ 394
5. EFFECTS OF FAILURE TO FILE RETURN...................................................................................................... 394
6. OMNIBUS WAIVER RULE ......................................................................................................................... 394
7. PROCEDURE FOR HEARING...................................................................................................................... 395
8. INSTITUTION OF SEPARATE ACTION......................................................................................................... 395
9. EFFECT OF FILING A CRIMINAL ACTION.................................................................................................... 395
10.CONSOLIDATION .................................................................................................................................... 395
11.INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT ............................................................ 395
12. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO ........................................ 396
O. WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC) .......................................................................................... 397
1. SCOPE AND AVAILABILITY OF WRIT.......................................................................................................... 397
2. DISTINGUISH FROM HABEAS CORPUS AND AMPARO ............................................................................... 397
3. CONTENTS OF THE PETITION ................................................................................................................... 398
4. CONTENTS OF RETURN ........................................................................................................................... 398
5. INSTANCES WHEN PETITION IS HEARD IN THE CHAMBERS ....................................................................... 399
6. CONSOLIDATION ..................................................................................................................................... 399
7. EFFECT OF FILING A CRIMINAL ACTION.................................................................................................... 399
8. INSTITUTION OF SEPARATE ACTION......................................................................................................... 399
9. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS DATA .................................. 399
P. CHANGE OF NAME ..................................................................................................................................... 399
1. DIFFERENCES UNDER RULE 103, REPUBLIC ACT NO. 9048 AND RULE 108 ................................................. 399
2. GROUNDS FOR CHANGE OF NAME .......................................................................................................... 401
Q. ABSENTEES ................................................................................................................................................ 402
1. PURPOSE OF THE RULE ............................................................................................................................ 402
2. WHO MAY FILE; WHEN TO FILE................................................................................................................ 403
R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY ........................................................ 403
1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO R.A. 9408 ...... 404
S. APPEALS IN SPECIAL PROCEEDINGS ............................................................................................................ 404
1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN............................................................... 404
2. WHEN TO APPEAL ................................................................................................................................... 405
3. MODES OF APPEAL.................................................................................................................................. 405
4. RULE ON ADVANCE DISTRIBUTION .......................................................................................................... 405
VII. CRIMINAL PROCEDURE ................................................................................................................................ 408
A. GENERAL MATTERS.................................................................................................................................... 410
1. DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED
................................................................................................................................................................... 410
2. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION ........................................................................... 411
3. JURISDICTION OF CRIMINAL COURTS....................................................................................................... 413
4. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION ........................................... 418
B. PROSECUTION OF CRIMINAL OFFENSES ..................................................................................................... 419
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1. CRIMINAL ACTIONS, HOW INSTITUTED .................................................................................................... 419
2. WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFICIO.............................................. 422
3. CRIMINAL ACTIONS, WHEN ENJOINED ..................................................................................................... 422
4. CONTROL OF PROSECUTION.................................................................................................................... 422
5. SUFFICIENCY OF COMPLAINT OR INFORMATION ..................................................................................... 425
6. DESIGNATION OF OFFENSE...................................................................................................................... 427
7. CAUSE OF THE ACCUSATION.................................................................................................................... 431
8. DUPLICITY OF THE OFFENSE; EXCEPTION ................................................................................................. 431
9. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION....................................................... 432
10. VENUE OF CRIMINAL ACTIONS .............................................................................................................. 434
11. INTERVENTION OF OFFENDED PARTY .................................................................................................... 435
C. PROSECUTION OF CIVIL ACTION ................................................................................................................. 435
1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION.............................................. 435
2. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY ............................................................................. 437
3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED ........................................................................................ 437
4. EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL ACTION......................................................... 438
5. PREJUDICIAL QUESTION .......................................................................................................................... 439
6. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION ...................... 440
D. PRELIMINARY INVESTIGATION................................................................................................................... 441
1. NATURE OF RIGHT................................................................................................................................... 442
2. PURPOSES OF PRELIMINARY INVESTIGATION........................................................................................... 443
3. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE ........................................... 443
4. RESOLUTION OF INVESTIGATION PROSECUTOR ....................................................................................... 447
5. REVIEW ................................................................................................................................................... 447
6. WHEN WARRANT OF ARREST MAY ISSUE................................................................................................. 449
7. CASES NOT REQUIRING A PRELIMINARY INVESTIGATION ......................................................................... 451
8. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION ............................................... 451
9. INQUEST ................................................................................................................................................. 451
E. ARREST....................................................................................................................................................... 453
1. ARREST, HOW MADE ............................................................................................................................... 453
2. ARREST WITHOUT WARRANT, WHEN LAWFUL ........................................................................................ 454
3. METHOD OF ARREST ............................................................................................................................... 456
4. REQUISITES OF A VALID WARRANT OF ARREST ........................................................................................ 457
5. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST .................................... 457
F. BAIL ............................................................................................................................................................ 458
1. NATURE .................................................................................................................................................. 458
2. WHEN A MATTER OF RIGHT; EXCEPTIONS ............................................................................................... 460
3. WHEN A MATTER OF DISCRETION ........................................................................................................... 461
4. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES .................................................................... 462
5. GUIDELINES IN FIXING AMOUNT OF BAIL................................................................................................. 463
6. BAIL WHEN NOT REQUIRED ..................................................................................................................... 466
7. INCREASE OR REDUCTION OF BAIL .......................................................................................................... 467
8. FORFEITURE AND CANCELLATION OF BAIL ............................................................................................... 467
9. APPLICATION NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY
INVESTIGATION .......................................................................................................................................... 469
G. ARRAIGNMENT AND PLEA ......................................................................................................................... 469
1. HOW MADE ............................................................................................................................................ 469
2. WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED .................................................................................. 471
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3. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE ................................................... 472
4. ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT THE COURT SHOULD DO....................................... 473
5. SEARCHING INQUIRY ............................................................................................................................... 473
6. IMPROVIDENT PLEA ................................................................................................................................ 474
H. MOTION TO QUASH ................................................................................................................................... 476
1. GROUNDS ............................................................................................................................................... 477
2. DISTINGUISH FROM DEMURRER TO EVIDENCE ........................................................................................ 478
3. EFFECTS OF SUSTAINING THE MOTION TO QUASH................................................................................... 479
4. EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION .... 480
5. DOUBLE JEOPARDY ................................................................................................................................. 480
6. PROVISIONAL DISMISSAL......................................................................................................................... 482
I. PRE-TRIAL.................................................................................................................................................... 484
1. MATTERS TO BE CONSIDERED DURING PRE-TRIAL ................................................................................... 484
2. WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED
BY THE ACCUSED ........................................................................................................................................ 484
3. PRE-TRIAL AGREEMENT ........................................................................................................................... 486
4. NON-APPEARANCE DURING PRE-TRIAL .................................................................................................... 486
5. PRE-TRIAL ORDER.................................................................................................................................... 486
J. TRIAL .......................................................................................................................................................... 490
1. INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW............................................................. 493
2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS .......................... 493
3. TRIAL IN ABSENTIA .................................................................................................................................. 495
4. REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD ......................... 496
5. REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS ............................................... 496
6. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS ........................................................................ 497
7. DEMURRER TO EVIDENCE........................................................................................................................ 498
8. GUIDELINES ON CONTINUOUS TRIAL ....................................................................................................... 499
K. JUDGMENT ................................................................................................................................................ 503
1. REQUISITES OF A JUDGMENT .................................................................................................................. 503
2. CONTENTS OF JUDGMENT....................................................................................................................... 503
3. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA .............. 504
4. WHEN DOES JUDGMENT BECOME FINAL ................................................................................................. 505
L. NEW TRIAL OR RECONSIDERATION............................................................................................................. 507
1. GROUNDS FOR NEW TRIAL ...................................................................................................................... 507
2. GROUNDS FOR RECONSIDERATION ......................................................................................................... 507
3. REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE ... 508
4. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION .................................................................. 508
M. APPEAL ..................................................................................................................................................... 509
1. EFFECT OF AN APPEAL ............................................................................................................................. 509
2. WHERE TO APPEAL .................................................................................................................................. 512
3. HOW APPEAL TAKEN ............................................................................................................................... 512
4. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED ................................................................................... 512
5. GROUNDS FOR DISMISSAL OF APPEAL ..................................................................................................... 512
N. SEARCH AND SEIZURE ................................................................................................................................ 513
1. NATURE OF SEARCH WARRANT ............................................................................................................... 513
2. DISTINGUISH FROM WARRANT OF ARREST .............................................................................................. 514
3. APPLICATION FOR SEARCH WARRANT, WHERE FILED............................................................................... 514
4. PROBABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT ......................................................................... 516
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5. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS ................................................... 516
6. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED................................................... 517
7. PERSONAL PROPERTY TO BE SEIZED ........................................................................................................ 517
8. EXCEPTIONS TO SEARCH WARRANT REQUIREMENT................................................................................. 519
9. REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE................................................................................ 521
10. CYBERCRIME WARRANTS ...................................................................................................................... 521
O. PROVISIONAL REMEDIES ........................................................................................................................... 529
VIII. EVIDENCE ................................................................................................................................................... 532
A. GENERAL PRINCIPLES OF EVIDENCE ........................................................................................................... 534
1. CONCEPT OF EVIDENCE ........................................................................................................................... 534
2. SCOPE OF THE RULES OF EVIDENCE ......................................................................................................... 534
3. DISTINGUISH: PROOF AND EVIDENCE ...................................................................................................... 536
4. DISTINGUISH: FACTUM PROBANS AND FACTUM PROBANDUM ............................................................... 536
5. ADMISSIBILITY OF EVIDENCE ................................................................................................................... 536
6. BURDEN OF PROOF AND BURDEN OF EVIDENCE ...................................................................................... 543
7. PRESUMPTIONS ...................................................................................................................................... 544
8. CONSTRUCTION OF RULES OF EVIDENCE ................................................................................................. 554
9. QUANTUM OF EVIDENCE ........................................................................................................................ 554
B. JUDICIAL NOTICE AND ADMISSIONS .......................................................................................................... 557
1. WHAT NEED NOT BE PROVED .................................................................................................................. 557
2. MATTERS OF JUDICIAL NOTICE ................................................................................................................ 557
3. JUDICIAL ADMISSIONS............................................................................................................................. 563
C. OBJECT (REAL) EVIDENCE ........................................................................................................................... 565
1. NATURE OF OBJECT EVIDENCE ................................................................................................................ 565
2. REQUISITES OF ADMISSIBILITY................................................................................................................. 566
3. CATEGORIES OF OBJECT EVIDENCE .......................................................................................................... 567
4. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
................................................................................................................................................................... 568
5. DNA EVIDENCE ........................................................................................................................................ 570
D. DOCUMENTARY EVIDENCE ........................................................................................................................ 572
1. MEANING OF DOCUMENTARY EVIDENCE ................................................................................................ 572
2. REQUISITES OF ADMISSIBILITY................................................................................................................. 573
3. ORIGINAL DOCUMENT RULE (FORMERLY THE BEST EVIDENCE RULE) ....................................................... 573
4. ELECTRONIC EVIDENCE............................................................................................................................ 579
5. PAROL EVIDENCE RULE............................................................................................................................ 583
6. AUTHENTICATION AND PROOF OF DOCUMENTS ..................................................................................... 589
E. TESTIMONIAL EVIDENCE............................................................................................................................. 595
1. QUALIFICATIONS OF A WITNESS .............................................................................................................. 595
2. DISQUALIFICATIONS OF A WITNESS ......................................................................................................... 595
3. EXAMINATION OF A WITNESS ................................................................................................................. 606
4. ADMISSIONS AND CONFESSIONS ............................................................................................................. 617
5. HEARSAY RULE ........................................................................................................................................ 626
6. OPINION RULE ........................................................................................................................................ 640
7. CHARACTER EVIDENCE ............................................................................................................................ 642
8. JUDICIAL AFFIDAVITS............................................................................................................................... 643
F. OFFER AND OBJECTION .............................................................................................................................. 646
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1. OFFER OF EVIDENCE ................................................................................................................................ 646
2. WHEN TO MAKE AN OFFER ..................................................................................................................... 646
3. OBJECTION.............................................................................................................................................. 647
4. REPETITION OF AN OBJECTION (CONTINUING OBJECTION) ...................................................................... 648
5. RULING ................................................................................................................................................... 648
6. STRIKING OUT OF AN ANSWER ................................................................................................................ 648
7. TENDER OF EXCLUDED EVIDENCE ............................................................................................................ 649
IX. REVISED RULES ON SUMMARY PROCEDURE ................................................................................................. 651
A. CASES COVERED BY THE RULE .................................................................................................................... 651
B. EFFECT OF FAILURE TO ANSWER ................................................................................................................ 652
C. PRELIMINARY CONFERENCES AND APPEARANCES OF PARTIES .................................................................. 652
D. PROHIBITED PLEADINGS AND MOTIONS.................................................................................................... 653
E. APPEAL ....................................................................................................................................................... 654
X. KATARUNGANG PAMBARANGAY................................................................................................................... 656
A. CASES COVERED......................................................................................................................................... 656
B. SUBJECT MATTER FOR AMICABLE SETTLEMENT ......................................................................................... 657
C. VENUE........................................................................................................................................................ 658
D. WHEN PARTIES MAY DIRECTLY GO TO COURT ........................................................................................... 659
E. EXECUTION................................................................................................................................................. 659
F. REPUDIATION ............................................................................................................................................. 659
XI. RULES OF PROCEDURE FOR SMALL CLAIMS CASES ........................................................................................ 662
A. SCOPE AND APPLICABILITY OF THE RULE ................................................................................................... 662
B. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE......................................................................... 664
C. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................... 666
D. APPEARANCES ........................................................................................................................................... 666
E. HEARING; DUTY OF THE JUDGE .................................................................................................................. 667
F. FINALITY OF JUDGMENT ............................................................................................................................. 667
XII. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (AM No. 09-6-8-SC) ................................................... 669
A. SCOPE AND APPLICABILITY OF THE RULE ................................................................................................... 669
B. CIVIL PROCEDURE ...................................................................................................................................... 670
1. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION .................... 670
2. PRE-TRIAL CONFERENCE; CONSENT DECREE ............................................................................................ 670
3. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................. 670
4. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (Rule 2, Sec. 8) ....................................................... 671
5. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT....................................................................... 671
6. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS ..................... 671
7. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION ............................................................................ 671
C. SPECIAL PROCEEDINGS............................................................................................................................... 672
1. WHAT IS A WRIT OF KALIKASAN .............................................................................................................. 672
2. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................. 674
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3. WHAT DISCOVERY MEASURES ARE AVAILABLE TO THE PARTIES? ............................................................. 674
4. WHAT IS A WRIT OF CONTINUING MANDAMUS? ..................................................................................... 675
D. CRIMINAL PROCEDURE .............................................................................................................................. 677
1. WHO MAY FILE........................................................................................................................................ 677
2. INSTITUTION OF CRIMINAL AND CIVIL ACTION ........................................................................................ 677
3. ARREST WITHOUT WARRANT, WHEN VALID ............................................................................................ 677
4. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS.......................................................... 677
5. BAIL ........................................................................................................................................................ 678
6. ARRAIGNMENT AND PLEA ....................................................................................................................... 678
7. PRE-TRIAL ............................................................................................................................................... 678
8. SUBSIDIARY LIABILITIES ........................................................................................................................... 679
E. EVIDENCE ................................................................................................................................................... 679
1. PRECAUTIONARY PRINCIPLE .................................................................................................................... 679
2. DOCUMENTARY EVIDENCE ...................................................................................................................... 680
XIII. ALTERNATIVE DISPUTE RESOLUTION .......................................................................................................... 682
A. TYPES OF PROCESSES AND PROCEDURES IN ALTERNATIVE DISPUTE RESOLUTION ..................................... 682
B. DOMESTIC ARBITRATION ........................................................................................................................... 685
C. JUDICIAL REVIEW OF ARBITRAL AWARDS................................................................................................... 688
D. APPEAL FROM COURT DECISIONS ON ARBITRAL AWARDS ........................................................................ 690
E. VENUE AND JURISDICTION ......................................................................................................................... 691
F. SPECIAL RULES ON COURT ALTERNATIVE DISPUTE RESOLUTION ................................................................ 691
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PRINCIPLES
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I. GENERAL PRINCIPLES
TOPIC OUTLINE UNDER THE SYLLABUS:
I. GENERAL PRINCIPLES
A. DISTINGUISH: SUBSTANTIVE LAW AND
REMEDIAL LAW
B. RULE-MAKING POWER OF THE SUPREME
COURT
1. Limitations on the rule-making power of the
Supreme Court
2. Power of the Supreme Court to amend and
suspend procedural rules
C. NATURE OF PHILIPPINE COURTS
1. Meaning of a court
2. Distinguish: court and judge
3. Classification of Philippine courts
4. Courts of original and appellate jurisdiction
5. Courts of general and special jurisdiction
6. Constitutional and statutory courts
7. Courts of law and equity
8. Principle of judicial hierarchy
9. Doctrine of non-interference or doctrine of
judicial stability
A. SUBSTANTIVE LAW AS
DISTINGUISHED FROM REMEDIAL LAW
Remedial Law
It is a branch of law that prescribes the methods of
enforcing rights and obligations created by
substantive law. It provides a procedural system
for obtaining redress for the invasion of rights and
violations of duties. It also prescribes rules as to
how suits are filed, tried and decided upon by the
courts. (Bustos v. Lucero, G.R. No. L-2068, 1948)
Major Aspects:
Civil Procedure;
Criminal Procedure;
Special Proceedings;
Evidence. (RIANO, 2019, p. 2).
Retroactive Application of Procedural Rules to
Pending Actions; Exception
The retroactive application of procedural laws
does not violate any personal rights because no
vested rights may attach to nor rise therefrom. (In
the Matter to Declare in Contempt of Court Hon.
Simeon Datumanong, G.R. No. 150274, 2006).
Retroactive application does not apply when the
statute itself expressly or impliedly provides that
pending actions are excepted from its operation,
or when applying it to pending proceedings would
impair vested rights. Under appropriate
circumstances, courts may deny the retroactive
application of procedural laws in the event that it
would not be feasible or would work injustice. (Tan
v. CA, G.R. No. 136368, 2002).
Substantive Law vs. Remedial Law
SUBSTANTIVE LAW
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
Remedial
law
prescribes
the
method of enforcing
rights or obtaining
redress
for
their
invasions.
(Primicias v. Ocampo,
G.R. No. L-6120,
1953)
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(Bustos v. Lucero,
G.R. No. L-2068,
1948)
Makes vested rights
possible. (Fabian v
Desierto,
G.R.
129742, 1998)
Prospective
in
application. (Spouses
Tirona v Alejo, G.R.
129313, 2001)
Originates from the
legislature, and it is
not embraced by the
rule-making power of
the Supreme Court
(Primicias v Ocampo,
G.R. L-6120, 1953)
No vested rights may
attach to nor arise
therefrom
(Go v.
Sunbanun, G.R. No.
168240, 2011)
Retroactive
in
application. (Calacala
v. Republic, G.R. No.
154415, 2005)
Does not originate
from the legislature,
but has the force and
effect of law if not in
conflict
with
substantive
law.
(Alvero v. De La
Rosa, G.R. No. L-286,
1946)
B. RULE-MAKING POWER OF
THE SUPREME COURT
Power to Promulgate Procedural Rules
The Supreme Court shall have the power to
promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the
admission to the practice of law, the Integrated
Bar, and legal assistance to the under-privileged.
(PHIL. CONST. art. VIII, §5[5])
Separation of Powers
The 1987 Constitution took away the power of the
Congress to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. In
fine, the power to promulgate rules is no longer
shared by the Supreme Court with Congress,
more so with the executive. (Echegaray v
Secretary of Justice, 301 SCRA 96)
1. LIMITATIONS ON THE RULE-MAKING
POWER OF THE SUPREME COURT
REMEDIAL LAW
a. The rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
b. The rules shall be uniform for courts of the same
grade; and
c. The rules shall not diminish, increase, or modify
substantive rights. (PHIL. CONST. art. VIII, § 5)
2. POWER OF THE SUPREME COURT TO
AMEND AND SUSPEND PROCEDURAL
RULES
Power to Amend Procedural Rules
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
Appeals, G.R. No. 141524, 2005).
Power to Relax/Suspend Procedural Rules
The Supreme Court’s constitutional power to
promulgate rules of practice and procedure and to
amend or repeal the same necessarily carries with
it the power to overturn judicial precedents on
points of remedial law through the amendment of
the Rules of Court. (Pinga v. Heirs of Santiago,
G.R. No. 170354, 2006).
Compliance with the procedural rules is the
general rule, and abandonment thereof should
only be done in the most exceptional
circumstances. (Pilapil v. Heirs of Briones, G.R.
No. 150175, 2007).
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, 2006)
The power to suspend or even disregard rules can
be so pervasive and compelling as to alter even
that which the Court itself had already declared to
be final. (Apo Fruits Corporation v. Land Bank of
the Philippines, G.R. No. 164195, Oct. 12, 2010).
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Reasons That Would Warrant the Suspension
of the Rules:
1. Most persuasive and weighty reasons;
2. To relieve a litigant from an injustice not
commensurate with his failure to comply with
the prescribed procedure;
3. Good faith of the defaulting party by immediately
payment within a reasonable time from the time
of the default;
4. The existence of special or compelling
circumstances;
5. The merits of the case;
6. A cause not entirely attributable to the fault or
negligence of the party favored by the
suspension of the Rules;
7. A lack of any showing that the review sought is
merely frivolous and dilatory;
8. The other party will not be unjustly prejudiced
thereby;
9. Fraud, accident, mistake, or excusable
negligence without appellant's fault;
10. Peculiar legal and equitable circumstances
attendant to each case;
11. In the name of substantial justice and fair play;
12. Importance of the issues involved; and
13. Exercise of sound discretion by the judge
guided by all the attendant circumstances.
(Labao v. Flores, G.R. No. 187984, Nov. 11,
2010)
Power to Discipline Judiciary Employees for
Non-Compliance with Rules and Regulations
The Supreme Court is given exclusive
administrative supervision over all courts and
judicial personnel. Only the Supreme Court can
oversee the judges’ and court personnel’s
compliance with all laws, rules and regulations. No
other branch of government may intrude into this
power, lest it violates the doctrine of separation of
powers. (PHIL. CONST. art. VIII, § 6)
Administrative jurisdiction over a court employee
belongs to the Supreme Court, regardless of
whether the offense was committed before or after
employment in the judiciary. (Sarah Ampong v.
CSC, GR No. 167916, Aug. 26, 2008)
C. NATURE OF PHILIPPINE COURTS
1. MEANING OF A COURT
It is an organ of the government belonging to the
judicial department, the function of which is the
application of the laws to controversies brought
before it as well as the public administration of
justice. (Black’s, 5th Edition, p. 356, see RIANO,
2019, p. 27).
Judicial Power
It includes the duty of the courts of justice:
1. To settle actual controversies involving rights,
which are legally demandable and enforceable;
and
2. To determine whether or not there has been
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government. (PHIL.
CONST. art. VIII, § 1).
The Supreme Court’s power of judicial review is
limited to actual cases and controversies. There is
an actual case or controversy when the case
presents conflicting or opposite legal rights that
may be resolved by the court in a judicial
proceeding. A case becomes moot and academic
when, by virtue of supervening events, the
conflicting issue that may be resolved by the court
ceases to exist. There is no longer any justiciable
controversy that may be resolved by the court.
(Republic of the Philippines v. Moldex Realty Inc.,
GR No. 171041, 2016)
2. DISTINGUISH: COURT AND JUDGE
COURT
JUDGE
A tribunal officially An officer
assembled
under tribunal
authority of law;
of
such
An organ of the Person who sits on the
government with a court
personality separate &
distinct from the judge
A being in imagination A natural person
comparable
to
a
corporation
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An office
A public officer
(RIANO, 2019, p. 28)
The continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge
may resign, become incapacitated, or be
disqualified to hold office, but the court
remains. (ABC Davao Auto Supply, Inc. v Court of
Appeals, G.R. No. 113296, Jan. 16, 1998)
3. CLASSIFICATION OF PHILIPPINE
COURTS
Superior and Inferior Courts
SUPERIOR COURT
INFERIOR COURT
Superior courts are
courts with controlling
authority over some
other court or courts,
and with certain original
jurisdiction
of
its
own. (RIANO, 2019, p.
24)
Inferior courts are
those
which are
subordinate to other
courts and whose
judgments
and
decrees
can
be
reviewed by
the
higher
tribunals.
(RIANO, 2019, p. 24)
These are courts which
have the power of
review or supervision
over lower courts (1
REGALADO, p. 1).
These are courts, in
relation to a superior
court, which are
lower in rank and
subject to review and
supervision by the
latter (1 REGALADO,
p. 1).
Courts of Record and Not of Record.
Court of record are those which are bound to
keep a record of their proceedings for a perpetual
memorial and testimony thereof. (Melgar v.
Delgado, G.R. No. 30892, Jul. 22, 1929) A court
not of record is one which does not keep written
accounts of its proceedings.
instance must nevertheless proceed by trial de
novo. Conversely, as long as the records are taken
of the trial, these records may be the basis of the
review and decision of the appellate court,
notwithstanding that the inferior court is not a court
of record. (Ramirez v. Court of Appeals, G.R. No.
L-33300, Oct. 22, 1975)
Note: R.A. No. 6031 mandates all Municipal Trial
Courts to be courts of record.
Criminal Court and Civil Court
CRIMINAL COURT
CIVIL COURT
Those
which
adjudicate
offenses
alleged to have been
committed against the
State (21 CJS, Courts,
Sec. 4)
Those
which
determine
controversies between
private persons. (21
CJS, Courts, Sec. 4)
4. COURTS OF ORIGINAL AND APPELLATE
JURISDICTION
ORIGINAL COURT
APPELLATE
COURT
Actions or proceedings Has the power of
are originally filed with review
over
the
it.
decisions or orders of
a lower court.
(21 CJS, Courts, Sec. 3)
Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts are courts of
original jurisdiction. The Regional Trial Court,
Court of Appeals, and the Supreme Court are both
courts of original and appellate jurisdiction.
(RIANO, 2019, pp. 25-26)
Note: The Supreme Court En Banc is not an
appellate court to which decisions or resolutions
of a division of the Supreme Court may be
appealed. (Id.)
Even if an inferior court has already been officially
declared a court of record, but if for one reason or
another, no record of its proceedings has actually
been taken in a given case, the appeal in such an
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5. COURTS OF GENERAL AND SPECIAL
JURISDICTION
COURTS OF
GENERAL
JURISDICTION
COURT OF SPECIAL
JURISDICTION
Those
with
competence to decide
on
their
own
jurisdiction and take
cognizance
of
all
cases, whether civil
and criminal, of a
particular nature. (21
CJS Courts, Sec. 3)
Those which have
jurisdiction only 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 (21 CJS
Courts, Sec. 3)
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, i.e., the
RTC. (Sec. 19[6] and
20, BP 129)
These are tribunals
exercising
limited
jurisdiction
over
particular
or
specialized categories
of actions, e.g., Family
Courts, Commercial
Courts, Court of Tax
Appeals,
Sandiganbayan. (Re:
Problem of Delays in
Cases Before the
Sandiganbayan, A.M.
No.
00-8-05-SC
(Resolution), Nov. 28,
2001)
6. CONSTITUTIONAL AND STATUTORY
COURTS
CONSTITUTIONAL
COURT
STATUTORY COURT
One created by a One created by a law
direct
constitutional other
than
the
provision.
constitution.
In the Philippines, only
the Supreme Court is
a constitutional court.
(PHIL. CONST., art. 8,
Sec. 1)
All courts in the
Philippines, except the
Supreme Court, are
statutory courts.
(RIANO, 2019, p. 23).
7. COURTS OF LAW AND EQUITY
Courts of Law and Equity, Defined
A court of law is any tribunal duly administering
the laws of the land. (US v. Tamparong, G.R. No.
L-9527, Aug. 23, 1915).
A court of equity is one when the Court relaxes
the strict application of the rules where strong
considerations of justice are manifest. (Lefebre v
A Brown Company, G.R. 224973, Sep. 27, 2017).
Philippine courts are both courts of law and equity.
(US v. Tamparong, G.R. No. L-9527, Aug. 23,
1915)
Equity and Equity Jurisdiction Defined
Equity is justice outside legality. (Ocampo v
Enriquez (Resolution), G.R. 225973, Aug. 8,
2017).
Equity jurisdiction is the power of the court to
resolve issues presented in a case, in accordance
with the natural rules of fairness and justices, and
in the absence of a clear positive law governing
such issues (RIANO, 2019, p. 16-17), and must
always be anchored on the basic consideration
that the same must be warranted by the
circumstances obtaining in the case. (Visayan
Electric Co. Employees Union-ALU-TUCP v.
Visayan Electric Co., Inc., G.R. No. 205575, Jul.
22, 2015)
Equity jurisdiction is based on the rule of liberality
in the interpretation of the Rules to achieve
substantial justice.
When Equity Does Not Apply
a. When there is a law applicable to a given case
(Smith Bell Co. v. CA, 267 SCRA 530);
b. When there is a judicial pronouncement
available to the issue (RIANO, p. 17); or
c. When the one seeking its active interposition
has been guilty of unlawful or inequitable
conduct in the matter with relation to which he
seeks relief. (Manotok IV v. Heirs of Barque,
G.R. Nos. 162335 & 16260 (Resolution), Dec.
18, 2008)
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8. PRINCIPLE OF JUDICIAL HIERARCHY
Doctrine of Hierarchy of Courts
Under the principle of hierarchy of courts, direct
recourse to the Supreme Court is improper
because this Court is a court of last resort and
must remain to be so in order for it to satisfactorily
perform its constitutional functions, thereby
allowing it to devote its time and attention to
matters within its exclusive jurisdiction and
preventing the overcrowding of its docket. (Dy v.
Bibat-Palamos, G.R. No. 196200, 2013)
The judicial system follows a ladderized scheme
which, in essence, requires that lower courts
initially decide on a case before it is considered by
a higher court. This means that a higher court will
not entertain direct resort to it unless the redress
cannot be obtained in the appropriate courts
below. (Capalla v. Commission on Elections, G.R.
Nos. 201112, June 13, 2012)
The doctrine of hierarchy of courts finds
application where courts have concurrent
jurisdiction – that which is exercised by different
courts over the same subject matter. (Unduran v
Aberasturi, G.R. 181284, 2017) This concurrence
of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an
absolute, unrestrained freedom of choice of the
court to which application therefor will be directed.
A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior")
courts should be filed with Regional Trial Court,
and those against the latter, with the Court of
Appeals. (Tolentino v. People, G.R. No. 170396,
Aug. 31, 2006)
Exceptions to the Doctrine
A direct invocation of the Supreme Court’s original
jurisdiction to issue a writ of certiorari should be
allowed only when there are special and important
reasons, clearly and specifically set out in the
petition. (First United v. Poro Point, GR No.
178799, 2009) These cases are:
a. When special and important reasons are
clearly stated in the petition;
b. When dictated by public welfare and the
advancement of public policy;
REMEDIAL LAW
c. When demanded by the broader interest of
justice;
d. When the challenged orders were patent
nullities;
e. When analogous exceptional and compelling
circumstances called for and justified our
immediate and direct handling of the case (for
a-e, Republic v. Caguioa, G.R. No. 174385,
2013);
f. 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. 205728,
2015);
g. When the issues raised are of transcendental
importance. (Rama v Moises, G.R. 197146,
2017)
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
General Rule
This principle holds that courts of equal and
coordinate jurisdiction cannot interfere with each
other’s orders. (Lapu-lapu Development and
Housing Corp v. Group Management Corp, G.R.
No. 141407, 2002).
Hence, a Regional Trial Court has no power or
authority to nullify or enjoin the enforcement of a
writ of possession issued by another Regional
Trial Court. (Suico Industrial Corporation v. Court
of Appeals, G.R. No. 123050, 1999).
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction or power
of review. (Villamor v. Salas, G.R. No. L-101041,
1991).
This doctrine applies with equal force to
administrative bodies; when the law provides for
an appeal from the decision of an administrative
body to the Supreme Court or Court of Appeals, it
means that such body is co-equal with the
Regional Trial Court 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,
2002).
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Exceptions to the Doctrine
The doctrine of judicial stability does not apply:
1. Where a third-party claimant is involved (Santos
v. Bayhon, G.R. No. 88643, 1991);
2. Execution through a separate action (Rule 39,
Sec. 16);
3. Preliminary Attachment (Rule 57, Sec. 14);
4. Replevin, through intervention, since the main
action is still pending (Rule 60, Sec. 7).
————- end of topic ————-
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II. JURISDICTION
TOPIC OUTLINE UNDER THE SYLLABUS:
REMEDIAL LAW
SUMMARY PROCEDURE AND BARANGAY
CONCILIATION
H. HOW JURISDICTION IS DETERMINED
II. JURISDICTION
A. CLASSIFICATION OF JURISDICTION
1. Distinguish: original and appellate
2. Distinguish: general and special
3. Distinguish: exclusive and concurrent
B. DOCTRINE OF HIERARCHY OF COURTS
AND CONTINUITY OF JURISDICTION
C. JURISDICTION OF VARIOUS PHILIPPINE
COURTS
1. Supreme Court
2. Court of Appeals
3. Court of Tax Appeals
4. Sandiganbayan
5. Regional Trial Courts
6. Family Courts
7. Metropolitan Trial Courts, Municipal Trial
Courts, Municipal Trial Courts in Cities,
Municipal Circuit Trial Courts
D. ASPECTS OF JURISDICTION
1. Jurisdiction over the parties
a. How jurisdiction over the plaintiff is
acquired
b. How jurisdiction over the defendant is
acquired
2. Jurisdiction over the subject matter
a. Meaning of jurisdiction over the subject
matter
b. Distinguish: jurisdiction and exercise of
jurisdiction
c. How jurisdiction is conferred and
determined
d. Distinguish: doctrine of primary
administrative jurisdiction and doctrine
of
exhaustion of
administrative
remedies
e. Doctrine of adherence of jurisdiction
f. Objections to jurisdiction over the
subject matter
g. Effect of estoppel on objection to
jurisdiction
3. Jurisdiction over the issues
4. Jurisdiction over the res or property in
litigation
5. Jurisdiction over the remedies
E. DISTINGUISH: ERROR OF JURISDICTION
AND ERROR OF JUDGMENT
F. DISTINGUISH: JURISDICTION AND VENUE
G. JURISDICTION OVER SMALL CLAIMS,
CASES COVERED BY THE RULES ON
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A. CLASSIFICATION OF JURISDICTION
Definition of Jurisdiction
The power and authority of the court to hear, try,
and decide a case. (Cuenca v. PCGG, G.R. No.
159104-05, 2007)
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 aspect
of jurisdiction. (Echegaray v. Secretary of Justice,
G.R. 132601, Jan. 19, 1999)
It is not the authority of the judge, but of the court.
(ABC Davao v. Auto Supply, G.R. No. 113296,
1998)
Four Concepts of Jurisdiction
1. Jurisdiction over the Subject Matter;
2. Jurisdiction over the Parties;
3. Jurisdiction over the Issues; and
4. Jurisdiction over the Res. (Boston Equity
Resources, Inc. v. CA, G.R. No. 173946, Jun. 19,
2013).
1. DISTINGUISH: ORIGINAL AND
APPELLATE
See above discussion on Original vs. Appellate
Jurisdiction.
2. DISTINGUISH: GENERAL AND SPECIAL
See above discussion on General vs. Special
Jurisdiction.
3. DISTINGUISH: EXCLUSIVE AND
CONCURRENT
EXCLUSIVE
CONCURRENT
Jurisdiction
which
precludes the idea of
co-existence
and
refers to jurisdiction to
the
exclusion
of
others.
Jurisdiction which is
held by different courts
to take cognizance of
the
same
subject
matter.
(RIANO, 2019, p. 26)
Where there is concurrence of jurisdiction, the
court first taking cognizance of the case assumes
jurisdiction to the exclusion of others. (RIANO,
2019, p. 27).
B. DOCTRINES OF HIERARCHY OF
COURTS AND CONTINUITY OF
JURISDICTION
(ADHERENCE OF JURISDICTION)
Doctrine of Hierarchy of Courts
See previous discussion on Hierarchy of Courts.
Continuity of Jurisdiction/Adherence of
Jurisdiction
Once jurisdiction has attached, it cannot be ousted
by subsequent happenings or events, although the
event is of such character which would have
prevented jurisdiction from attaching in the first
instance. Once jurisdiction has been acquired by
the court, it retains that jurisdiction until it finally
disposes of the case (Baritua v. Mercader, G.R.
No. 136048, 2001).
General Rule: A law enacted during the pendency
of a case which transfers jurisdiction to another
court does not affect cases prior to its enactment.
Exceptions:
1. When the new law expressly provides for
retroactive application;
2. When the change of jurisdiction is curative in
character (Vda. de Ballesteros v. Rural Bank of
Canaman, G.R. No. 176250, 2010).
Applications of the Doctrine
1. Jurisdiction of the court is not lost by the mere
fact that a judge ceases to be in office (Victory
Liner v. Belosillo, A.M. No. MTJ-00-1321, Mar.
10, 2004);
2. Retirement of the public official during the
pendency of an administrative case does not
render the case moot and academic (Office of
the Ombudsman v. Dechaves, G.R. No.
176702, Nov. 13, 2013);
3. Finality of the judgment does not deprive the
court of its jurisdiction over the case, as it
retains the jurisdiction to enforce and execute
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it. What is lost is the power to amend, modify,
or alter the judgment. (Echegaray v. Secretary
of Justice, G.R. 132601, Jan. 19, 1999).
C. JURISDICTION OF VARIOUS
PHILIPPINE COURTS
REMEDIAL LAW
legislation. (Atlas Fertilizer v. Navarro, G.R. No.
72074, 1987)
The courts acquire jurisdiction over a case only
upon payment of the prescribed docket fee.
(Pacific Redhouse Corp v. EIB Securities, G.R.
No. 184036, 2010)
General Rule
The jurisdiction of the court is determined by the
statute in force at the time of the commencement
of the action. (Narra Nickel Mining v. Redmont,
G.R. No. 195580, 2014)
Exception
Unless such statute provides for its retroactive
application, such as where it is a curative
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1. SUPREME COURT
(a) ORIGINAL JURISDICTION
i. Original and Exclusive
(FERIA, 2013, p.167-168)
Petitions for the issuance of writs of certiorari, prohibition and mandamus against:
1. Court of Appeals.
2. Commission on Elections.
3. Commission on Audit.
4. Sandiganbayan.
5. Court of Tax Appeals.
ii. Original and Concurrent
(FERIA, 2013, p.168-172)
1. With the CA
1. Petitions for the issuance of writs of certiorari, prohibition and mandamus
against:
a. National Labor Relations Commission (NLRC);
b. Civil Service Commission (CSC);
c. Quasi-Judicial Agencies;
d. RTC and lower courts.
2. Petitions for the issuance of a writ of kalikasan.
NOTE: This is subject to the doctrine of hierarchy of courts.
2. With the CA, SB 1. Petition for writ of amparo;
2. Petition for writ of habeas data.
and RTC
NOTE: For a petition for a writ of habeas data, the action may be filed with the
Sandiganbayan when the action concerns public data files of government
offices.
3. With the CA and
RTC
1. Petitions for habeas corpus and quo warranto;
2. Petitions for the issuance of writs of certiorari, prohibition and mandamus
against lower courts or bodies;
3. Petitions for the issuance of writ of continuing mandamus in environmental
cases.
4. With the RTC
Actions affecting ambassadors, other public ministers and consuls.
NOTE: Under R.A. 10660, Sandiganbayan has jurisdiction in criminal cases
involving “officials of the diplomatic service occupying the position of consul and
higher”
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(b) APPELLATE JURISDICTION
1. Appeal by Notice of In criminal cases where:
1. The CA renders a judgment imposing reclusion perpetua, life
Appeal
imprisonment, or a lesser penalty, the judgment is appealable to the
Supreme Court by notice of appeal filed with the CA. (Sec. 13 (c), Rule
124, as amended; Dungo v. People, G.R. No. 209464, Jul. 1, 2015).
2. The Sandiganbayan decides a case in the exercise of its original
jurisdiction; the notice of appeal shall be filed with the Sandiganbayan and
served upon the adverse party. (Sec. 1(a), Rule XI, 2018 Revised Internal
Rules of the Sandiganbayan).
2. Appeal by Certiorari In civil cases involving:
/ Petition for Review 1. Appeals from the Regional Trial Court, in the exercise of its original
jurisdiction, involving pure questions of law;
on Certiorari (Rule
45)
2. Appeals from the following, involving questions of law, fact, or both:
a. Court of Appeals;
b. Court of Tax Appeals, en banc; and
c. Sandiganbayan (Sec. 1(a), Rule XI, 2018 Revised Internal Rules of the
Sandiganbayan)
3. Appeals in the following cases involving questions of law, fact, or both:
a. Petition for a writ of amparo (Sec. 19, The Rule on the Writ of Amparo);
b. Petition for a writ of kalikasan (Sec. 16, The Rules of Procedure in
Environmental Cases
c. Petition for a writ of habeas data. (Sec. 19, The Rule on the Writ of
Habeas Data)
In criminal cases where:
1. The Court of Appeals renders a judgment imposing reclusion perpetua, life
imprisonment, or a lesser penalty, and the appeal raises pure questions
of law. (Dungo v. People, G.R. No. 209464, Jul. 1, 2015);
2. The Sandiganbayan decides a case in the exercise of its appellate
jurisdiction, involving pure questions of law, fact or both. (Sec. 1(a), Rule
XI, 2018 Revised Internal Rules of the Sandiganbayan).
3. Special Civil Action Decision, order or ruling of:
of Certiorari within 1. Commission on Elections;
30 days (Rule 64)
2. Commission on Audit.
4. Appeal
by In criminal cases:
Automatic Review
1. Whenever the CA finds that the penalty of death should be imposed, the
CA shall render judgment but refrain from making an entry of judgment and
forthwith certify the case and elevate its entire record to the Supreme Court
for review. (Sec. 13(a), Rule 124, as amended);
2. Where the judgment of the CA also imposes a lesser penalty for offenses
committed on the same occasion or which arose out of the same
occurrence that gave rise to the more severe offense for which the penalty
of death is imposed, and the accused appeals, the appeal shall be included
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in the case certified for review to the Supreme Court. (Sec. 13(b), Rule 124,
as amended);
3. Whenever the Sandiganbayan, in the exercise of its original jurisdiction,
imposes the death penalty, the records of the case, together with the
stenographic notes, shall be forwarded to the SC for automatic review and
judgment. (Sec. 1(b), Rule XI, 2018 Revised Internal Rules of the
Sandiganbayan).
2. COURT OF APPEALS
(a) ORIGINAL JURISDICTION
i. Original and Exclusive
(FERIA, 2013, p.182-184)
Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction.
ii. Original and Concurrent
(FERIA, 2013, p.182-184)
1. With the SC
1. Petitions for the issuance of writs of certiorari, prohibition and mandamus
against:
a. NLRC;
b. CSC;
c. Quasi-Judicial Agencies;
d. RTC and lower courts.
2. Petitions for the issuance of a writ of kalikasan.
NOTE: This is subject to the doctrine of hierarchy of courts.
2. With the SC, SB, 1. Petition for writ of amparo;
2. Petition for writ of habeas data.
and RTC
NOTE: For a petition for a writ of habeas data, the action may be filed with the
Sandiganbayan when the action concerns public data files of government
offices.
3. With the SC and 1. Petitions for habeas corpus and quo warranto;
2. Petitions for the issuance of writs of certiorari, prohibition and mandamus
RTC
against lower courts or bodies;
3. Petitions for the issuance of writ of continuing mandamus in environmental
cases.
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(b) APPELLATE JURISDICTION
(FERIA, 2013, p.184-189)
i. Exclusive Appellate
1. Ordinary Appeal by Appeals from:
Notice of Appeal or 1. RTC in the exercise of its original jurisdiction, except in all cases where
Record on Appeal
only questions of law are raised or involved, which are appealable to the
SC by petition for review on certiorari in accordance with Rule 45;
2. RTC on constitutional and jurisdictional questions which involve questions
of fact;
3. Family Courts.
In criminal cases when:
1. RTC decides a case in the exercise of its original jurisdiction; and
2. RTC imposes penalty of reclusion perpetua or life imprisonment, or where
lesser penalty is imposed but for offenses committed on the same occasion
or which arose out of the same occurrence that gave rise to the more
serious offense for which death, reclusion perpetua or life imprisonment is
imposed, appeal shall be by notice of appeal to the CA. (Sec. 3 (a) & (c),
Rule 122).
2. Appeal by Petition An appeal may be taken to the CA whether the appeal involves questions of
for Review
fact, mixed questions of fact and law, or questions of law, in the following
cases:
Regular
1. Appeals from RTC in the exercise of its appellate jurisdiction.
Special
1. Appeals from CSC;
2. Appeals from Quasi-Judicial Agencies;
3. Securities and Exchange Commission;
4. Office of the President;
5. Land Registration Authority;
6. Social Security Commission;
7. Civil and Aeronautics Board;
8. Intellectual Property Office;
9. National Electrification Administration;
10. Energy Regulatory Commission;
11. National Telecommunications Commission;
12. Department of Agrarian Reform under RA 6657;
13. Government Service Insurance System;
14. Employees’ Compensation Commission;
15. Insurance Commission;
16. Philippine Atomic Energy Commission;
17. Board of Investments;
18. Construction Industry Arbitration Commission;
19. Voluntary Arbitrators authorized by law;
20. Ombudsman, in administrative disciplinary cases;
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21. National Commission on Indigenous Peoples;
From the judgments or final orders or resolutions of the CA, the aggrieved party
may appeal by certiorari to the SC as provided in Rule 45.
Judgments and final orders of the CTA en banc are now appealable to the SC
through a petition for review under Rule 45, pursuant to RA 9282.
3. Appeal by Automatic If RTC imposes death penalty, no notice of appeal is necessary; CA will
automatically review the judgment. (Sec. 3(d), Rule 122).
Review
3. COURT OF TAX APPEALS (RA 9282)
(A) EXCLUSIVE APPELLATE JURISDICTION (BY APPEAL):
1. Decisions from the COMMISSIONER OF INTERNAL REVENUE
 in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the National Internal Revenue Code
(NIRC) or other laws administered by the Bureau of Internal Revenue (BIR).
2. Inaction by the COMMISSIONER INTERNAL REVENUE
 in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered
by the BIR, where the NIRC provides a specific period of action, in which case the inaction shall
be deemed a denial.
3. Decisions, orders or resolutions of REGIONAL TRIAL COURTS
 in local tax cases originally decided or resolved by them in the exercise of their original and
appellate jurisdiction.
4. Decisions of the COMMISSIONER OF CUSTOMS
 in cases involving liability for custom duties, fees or other money charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters
arising under the Customs Law or other laws administered by the Bureau of Customs.
5. Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate
jurisdiction
 over cases involving the assessment and taxation of real property originally decided by the
provincial or city board of assessment appeals.
6. Decisions of the SECRETARY OF FINANCE
 on customs cases elevated to him/her automatically for review from decisions of the Commissioner
of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs
Code.
7. Decisions of the SECRETARY OF TRADE AND INDUSTRY
 in the case of non-agricultural product, commodity or article; and
8. Decisions of the SECRETARY OF AGRICULTURE
 in the case of agricultural product, commodity or article involving dumping and countervailing
duties under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard
measures under the RA 8800, where either party may appeal the decision to impose or not to
impose said duties.
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(b) CRIMINAL CASES
1. Exclusive Original Criminal cases arising from violations of the:
Jurisdiction
1. National Internal Revenue Code.
2. Tariff and Customs Code.
3. Other laws administered by the BIR or the Bureau of Customs.
Provided, however, that offenses or felonies mentioned in this paragraph
where the principal amount of taxes and fees, exclusive of charges and
penalties, claimed in less than P1M or where there is no specified amount
claimed shall be tried by the regular courts and the jurisdiction of the CTA shall
be appellate.
Any provision of law or the Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil
liability for taxes and penalties shall be at all times be simultaneously
instituted with, and jointly determined in the same proceeding by the
CTA, the filing of the criminal action being deemed to necessarily carry with it
the filing of the civil action, and no right to reserve the filing of such civil action
separately from the criminal action will be recognized.
2. Exclusive Appellate 1. Over appeals from the judgments, resolutions or orders of the RTC in tax
Jurisdiction
cases originally decided by them, in their respective territorial jurisdiction.
2. Over petitions for review of the judgments, resolutions or orders of the RTC
in the exercise of their appellate jurisdiction over tax cases originally
decided the MeTC, MTC and MCTC in their respective jurisdiction.
(c) TAX COLLECTION CASES
1. Exclusive Original Cases involving final and executory assessment for taxes, fees, charges and
penalties: Provided, however, that collection cases where the principal amount
Jurisdiction
of taxes and fees, exclusive of charges and penalties, claimed is less than P1M
shall be tried by the proper MTC, MeTC and RTC.
2. Exclusive Appellate In tax collection cases:
Jurisdiction
1. Over appeals from the judgments, resolutions or orders of the RTC in tax
collection cases originally decided by them, in their respective territorial
jurisdiction.
2. Over petitions for review of judgments, resolutions or orders of the RTC in
the exercise of their appellate jurisdiction over tax collection cases originally
decided the MeTC, MTC and MCTC in their respective jurisdiction.
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REMEDIAL LAW
4. SANDIGANBAYAN
(P.D. 1606, as amended by R.A. 10660, promulgated April 16, 2015)
(a) EXCLUSIVE ORIGINAL
A. Violations of the following:
1. The Anti-Graft and Corrupt Practices Act (Republic Act No. 3019);
2. 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 (Republic
Act No. 1379); and
3. Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, which are:
a. Direct Bribery;
b. Indirect Bribery;
c. Qualified Bribery; and
d. Corruption of Public Officials
Provided that one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:
1. Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Salary Grade ‘27’ and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 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 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.
2. Members of Congress and officials thereof classified as Grade ‘27’ and higher under the
Compensation and Position Classification Act of 1989;
3. Members of the judiciary without prejudice to the provisions of the Constitution;
4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions
of the Constitution; and
5. All other national and local officials classified as Grade ‘27’ and higher under the Compensation
and Position Classification Act of 1989.
B. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in “A” above in relation to their office; and
C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986.
Provided that the RTC of the judicial region other than where the official holds office shall have exclusive
original jurisdiction where the information:
1. Does not allege any damage to the government or any bribery; or
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2. Alleges damage to the government or bribery arising from the same or closely related transactions
or acts in an amount not exceeding P1,000,000.
Furthermore, the proper RTC or MTC shall have jurisdiction in cases where:
1. None of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as
prescribed under the Compensation and Position Classification Act of 1989; or
2. Military and PNP officers mentioned above
NOTE: In case private individuals are charged as co-principals, accomplices or accessories with the
public officers or employees, including those employed in government-owned or controlled corporations,
they shall be tried jointly with said public officers and employees in the proper courts which shall exercise
exclusive jurisdiction over them.
NOTE: Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted
with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts,
the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and
no right to reserve the filing of such civil action separately from the criminal action shall be recognized.
NOTE: Where the civil action had heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said
civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, otherwise the separate civil action shall be
deemed abandoned.
D. Money Laundering cases committed by public officers and private persons, who are in conspiracy
with such public officers, shall be under the jurisdiction of the Sandiganbayan. (Sec. 5, RA 9160, Anti
Money Laundering Act of 2001).
E. All prosecutions under the Anti-Plunder Law shall be within the original jurisdiction of the
Sandiganbayan. (Sec. 3, RA 7080, An Act Defining and Penalizing the Crime of Plunder).
F. 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 Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Note that the
jurisdiction over these petitions shall not be exclusive of the Supreme Court.
(b) EXCLUSIVE APPELLATE
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.
1. Appeal by Notice of Appeal
In civil and criminal cases, appeal to the Sandiganbayan from a
decision rendered by the RTC, in the exercise of its original
jurisdiction, shall be by ordinary appeal (i.e., filing of notice of appeal
with the RTC), under Rules 41 and 44, and Rules 122 and 124 of the
Rules of Court. (Sec. 1, Rule XIII, 2018 Revised Internal Rules of the
Sandiganbayan).
2. Appeal by Petition for Review In civil and criminal cases, appeal to the Sandiganbayan from a
decision rendered by the RTC, in the exercise of its appellate
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jurisdiction, shall be by petition for review under Rule 42 of the Rules
of Court. (Sec. 2, Rule XIII, 2018 Revised Internal Rules of the
Sandiganbayan).
5. REGIONAL TRIAL COURTS
(a) ORIGINAL JURISDICTION
i. Original and Exclusive
1. Civil Cases
1. Civil actions in which the subject of litigation is incapable of pecuniary
estimation;
2. Civil actions which involve the title to, or possession of, REAL property, or any
interest therein, where the assessed value of the property involved exceeds
P20K, or P50K if in Metro Manila, except actions forcible entry and unlawful
detainer which are cognizable by the MeTC, MTC, MCTC;
3. Actions in admiralty and maritime jurisdiction where the demand or claim
exceeds P300K, or P400K if in Metro Manila;
4. Matters of probate, both testate and intestate, where the gross value of the
estate exceeds P300K, or P400K if in Metro Manila;
5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions, as RTC being a court of general
jurisdiction;
6. Actions involving the contract of marriage and marital relations in areas where
there are no established Family Courts;
7. Civil actions and special proceedings falling within the exclusive original
jurisdiction of the Special Agrarian Courts as now provided by law;
8. Other cases in which the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs or the value of the property
in controversy, exceeds P300K, or P400K if in Metro Manila.
(RIANO, p. 139-140)
IMPORTANT: If the claim for damages is the main cause of action, the amount
thereof shall be considered in determining the jurisdiction of the court.
2. Criminal Cases
Criminal cases not within the exclusive jurisdiction of any court, tribunal or body,
such as the following:
1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine.
2. Under no. 1 above not falling under the original jurisdiction of the
Sandiganbayan where none of the principal accused are occupying positions
corresponding to salary grade “27” or higher, or military and PNP officers
occupying the rank of superintendent or higher, or their equivalent;
3. Those officers falling under the jurisdiction of the Sandiganbayan but the
related information:
a. Does not allege any damage to the government or any bribery;or
b. Alleges damages damage to the government or bribery arising from the
same or closely related transactions or acts in an amount not exceeding
P1,000,000.
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NOTE: Subject to the rules promulgated by the Supreme Court, the cases falling
under the jurisdiction of the Regional Trial Court shall be tried in the judicial region
other than where the official holds office.
4. Only penalty provided by law is a fine exceeding P4K.
5. Violations of the:
a. Comprehensive Dangerous Drugs Act of 2002.
b. Anti-Violence against Women and their Children Act of 2004 (specifically,
those involving violence against women and children as defined under
Section 5).
c. Comprehensive Agrarian Reform Law.
d. Omnibus Election Code and other election laws.
(FERIA, 2013, p.193-194)
N.B.: Family Courts have exclusive original jurisdiction over criminal cases where
one or more of the accused is below 18 years old, or when one or more of the
victims is a minor at the time of the commission of the offense. However, if the
victim has already died, such as in homicide cases, the regular courts can have
jurisdiction. (People v Dela Torre-Yadao,G.R. Nos. 162144-54, 2012)
3. Other Cases
1. Actions for recognition and enforcement of an arbitration agreement or for
vacation, setting aside, correction or modification of an arbitral award, and any
application with a court for arbitration assistance and supervision.
2. Actions for determination of just compensation to land under the CARL.
(FERIA, 2013, p.193-194
ii. Original and Concurrent
(FERIA, 2013, p.195-196)
1. With the SC
Actions affecting ambassadors and other public ministers and consuls.
2. With the SC and
CA
1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus, and injunction which may be enforced in any part of their respective
regions.
2. Petition for the issuance of writ of continuing mandamus in environmental
cases.
3. With the SC, CA
and SB
1. Petition for writ of amparo.
2. Petition for writ of habeas data.
4. With
the Claims not exceeding P100K. This is applicable if subject of the action is incapable
Insurance
of pecuniary estimation; otherwise, jurisdiction is concurrent with the MeTC.
Commissioner
(b) APPELLATE JURISDICTION
(FERIA, 2013, p.196)
Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Jurisdiction.
(c) SPECIAL JURISDICTION
(FERIA, 2013, p.197)
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The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction
of quasi-judicial bodies and agencies, and/or such other special cases as the SC may determine in the
interest of a speedy and efficient administration of justice.
6. FAMILY COURTS
(FERIA, 2013, p.206-208)
ORIGINAL AND EXCLUSIVE JURISDICTION
1. Criminal cases where one or more of the accused is 15≤x<18 years old, or where one or more of the
victims is a minor at the time of the commission of the offense: provided, that if the minor is found
guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may
have incurred. The sentence, however, shall be suspended without need of application pursuant to
the Child and Youth Welfare Code (PD 603).
2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter.
3. Petitions for adoption of children and revocation thereof.
4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those living together under different status and
agreements, and petitions for dissolution of conjugal partnership or gains
5. Petitions for support and/or acknowledgment.
6. Summary judicial proceedings brought under the provisions of the Family Code of the Philippines
(E.O No. 209).
7. Petitions for declaration of status of children as abandoned, dependent or neglected children;
petitions for voluntary or involuntary commitment of children; the suspension, termination, or
restoration of parental authority and other cases cognizable under the Child and Youth Welfare Code
(PD 603), Authorizing the Ministry of Social Services and Development to Take Protective Custody
of Child Prostitutes and Sexually Exploited Children, and for Other Purposes (E.O. 56), and other
related laws.
8. Petitions for constitution of the family home.
9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2005.
10. Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination Act
(RA 7610), as amended by RA 7658 and RA 9231.
11. Cases of domestic violence against:
1. Women – which are acts of gender-based violence that results, or are likely to result in physical,
sexual or psychological harm or suffering to women; and other forms of physical abuse such as
battering or threats and coercion which violate a woman’s personhood, integrity and freedom of
movement; and
2. Children – which include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their development.
If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings
and the corresponding penalties.
If any question involving any of the above matters should arise as an incident in any case pending in the
regular courts, said incident shall be determined in that court.
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7. MUNICIPAL TRIAL COURTS – MeTC, MTC and MCTC
(FERIA, 2013, p.197-204)
(a) ORIGINAL JURISDICTION
i. Original and Exclusive
1. Civil
cases
1. Civil actions and probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the personal property,
estate or amount of demand does NOT exceed P300K, or P400K if in Metro Manila,
exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses,
and costs, the amount of which must be specifically alleged. However, interest,
damages of whatever kind, attorney’s fees, litigation expenses, and costs shall be
included in the determination of the filing fees.
2. Admiralty and maritime cases where the demand or claim does NOT exceed P300K,
or P400K if in Metro Manila.
3. Forcible entry and unlawful detainer regardless of value of property involved, with
jurisdiction to determine the issue of ownership only to resolve the issue of
possession.
4. Civil actions which involve title to, or possession of, REAL property, or any interest
therein where the assessed value of the property or interest therein does NOT
exceed P20K, or P50K if in Metro Manila, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs. In cases of land not declared for
taxation purposes, the value of such property shall be determined by the assessed
value of the adjacent lots.
5. Inclusion and exclusion of voters.
Where there are several claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the demand shall be the totality
of the claims in all the causes of action irrespective of whether the causes of action
arose out of the same or different transactions.
2. Crimin
al
cases
EXCEPT in cases falling within the exclusive original jurisdiction of the RTC or SB—
1. Violations of city or municipal ordinances committed within their respective territorial
jurisdiction.
2. Offenses punishable with imprisonment NOT exceeding 6 years irrespective of the
amount of fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof.
3. Offenses under (2) above include those NOT falling within the exclusive original
jurisdiction of the SB where none of the accused is occupying positions
corresponding to salary grade ‘27’ or higher.
4. Offenses involving damage to property through criminal negligence.
5. In cases where the only penalty provided by law is a fine of not more than P4K.
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(b) DELEGATED JURISDICTION
Cadastral or land registration cases covering lots where there is no controversy or opposition, or
contested lots where the value of which does NOT exceed P100K, such value to be ascertained by
the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or
from the corresponding tax declaration of the real property. These cases are assigned and not
automatically delegated.
(c) SPECIAL JURISDICTION
In the absence of all the RTC Judges in a province of city—
1. Hear and decide petitions for writ of habeas corpus.
2. Hear and decide applications for bail in criminal cases.
(d) SUMMARY PROCEDURE
1.Civil
cases
1. All cases of forcible entry and unlawful detainer, irrespective of the amount of
damages or unpaid rentals sought to be recovered, but if attorney’s fees are awarded,
the same shall not exceed P20,000.00; and
2. All other cases, except probate proceedings, where the total amount of the plaintiff’s
claim does not exceed one hundred thousand pesos (P100,000) or two hundred
thousand pesos (P200,000) in Metropolitan Manila, exclusive of interests and costs.
(Sec. 1(A), Revised Rule on Summary Procedure, as amended)
2. Criminal 1. Traffic violations.
cases
2. Rental law violations.
3. Violations of city or municipal ordinances.
4. Violations of B.P. 22 (Bouncing Checks Law).
5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K,
irrespective of other imposable penalties, accessory or otherwise.
6. In offenses involving damage to property through criminal negligence, where the
imposable fine does not exceed P10K.
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D. ASPECTS OF JURISDICTION
1. JURISDICTION OVER THE PARTIES
Jurisdiction over the parties is the power of a court
to render personal judgment or to subject the
parties in a particular action to the judgment or
other rulings rendered in an action. (Villagracia v.
Fifth Shari’a Court, G.R. No. 188832, 2014)
When Jurisdiction Over Defendant is Required
Jurisdiction over the person of the defendant is
required only in an action in personam. It is not
required in an action in rem or quasi in rem.
(RIANO, 2019, p. 88).
2. JURISDICTION OVER THE SUBJECT
MATTER
a. How jurisdiction over the plaintiff is
acquired
a. Meaning of jurisdiction over the subject
matter
Jurisdiction over the plaintiff is acquired by his
filing of the complaint, petition, or other initiatory
pleading. (Davao Light & Power v. CA, G.R. No.
93262, 1991)
Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action.
It refers to jurisdiction of the class of cases to
which the particular case belongs. (Allied Domecq
v. Villon, G.R. No. 156264, 2004).
Effect of Unauthorized Complaint
An unauthorized complaint (i.e., one which is filed
by a person not authorized by the plaintiff) does
not produce any legal effect. Hence, the court
should dismiss the complaint on the ground that it
has no jurisdiction over the complaint and the
plaintiff. (Palmiano-Salvador v. Angeles, G.R. No.
171219, 2012)
b. How jurisdiction over the defendant is
acquired
Jurisdiction over the defendant is acquired either
by:
1. A valid service of summons upon him; or
2. His voluntary submission to the court’s
authority. (Macaset v. Co, G.R. No. 156759,
Jun. 5, 2013)
As a general rule, one who seeks an affirmative
relief is deemed to have submitted to the
jurisdiction of the court. (David v. Agbay, G.R. No.
199113, 2015)
As an exception, a motion to dismiss raising the
ground of lack of jurisdiction over the person of the
defendant is not deemed voluntary appearance.
Under the 2019 Amendments, if a movant raises
other grounds aside from lack of jurisdiction over
the person of the defendant, this shall be deemed
as voluntary appearance. (Sec. 23, Rule 14).
It refers to the power of a particular court to hear
the type of case that is then before it. (RIANO,
2019, p. 61)
Meaning of Subject Matter
The subject matter is the item with respect to
which the controversy has arisen, or concerning
which the wrong has been done, and it is ordinarily
the right, the thing, or the contract under dispute.
(Spouses Ley v. Union Bank of the Philippines,
G.R. No. 167961, Apr. 3, 2007).
b. Distinguish: jurisdiction and exercise of
jurisdiction
JURISDICTION
EXERCISE OF
JURISDICTION
The authority to hear The exercise of such
and decide a case.
power or authority.
It constitutes the actual It constitutes the acts
power and authority of the court in
itself.
accordance with such
jurisdiction, renders a
decision on the case,
and executes its
decision.
(RIANO, 2019, p.63)
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c. How jurisdiction is conferred and
determined
How Jurisdiction is Conferred
Jurisdiction over the subject matter is conferred
only by the Constitution or the law. It cannot be
contingent upon the action or inaction of the court.
(Republic v. Bantigue, G.R. No. 162322, 2012).
Jurisdiction is conferred by substantive law, and
not by a procedural law. (Malaloan v. Court of
Appeals, G.R. No. 104879, May 6, 1994).
Consequences
of
Jurisdiction
Being
Conferred by Law
Since jurisdiction is conferred only by the
Constitution or by law:
1. It does not depend on the regularity of its
exercise by a court or tribunal. (Salvador v.
Patricia, Inc. G.R. No. 195834, Nov. 9, 2016);
2. It cannot be acquired, waived, enlarged, or
diminished by any act or omission of the
parties. (Department of Agrarian Reform v.
Republic, G.R. No. 160560, Jul. 29, 2005);
3. It cannot be conferred by acquiescence of the
courts. (Knights of Rizal v. DMCI Homes, Inc.,
G.R. No. 213948, Apr. 25, 2017);
4. It cannot be conferred by administrative policy
of the court. (Cudia v. Court of Appeals, G.R.
No. 110315, Jan. 16, 1998)
5. It cannot be presumed or implied, but it must
appear clearly from the law or it will not be held
to exist, but it may be conferred on a court or
tribunal by necessary implication as well as by
express terms. (Salvador v. Patricia, Inc. G.R.
No. 195834, Nov. 9, 2016);
Exceptions:
1. Estoppel by laches (Tijam v. Sibonghanoy, G.R.
No. L-21450, 1968);
2. Estoppel by deed or estoppel in pais (Soliven v.
Fastforms, G.R. No. 139031, 2004)
Effect of Lack of Jurisdiction Over The Subject
Matter of the Action
Any judgment, order or resolution issued without
jurisdiction is void and cannot be given any
effect. This rule applies even if the issue on
jurisdiction was raised for the first time on appeal
or even after final judgment. (Magno v. People,
G.R. No. 171542, 2011)
REMEDIAL LAW
If the court has no jurisdiction, but the case was
tried and decided upon the theory that it has
jurisdiction, the parties are not barred, on appeal,
from assailing such jurisdiction, for the same must
exist as a matter of law, and may not be conferred
by consent of the parties or by estoppel. (Lozon v.
NLRC, G.R. No. 107660, Jan. 2, 1995)
How Jurisdiction is Determined
Jurisdiction over the subject matter is determined
by the allegations of the complaint and the
character of the relief sought. (Heirs of Alfredo
Bautista v. Lindo, G.R. No. 208232, 2014)
Determining Jurisdiction From the Allegations
of the Complaint
It is not the title of the pleading but its allegations
that must control. (Jordan v. Grandeur Security,
G.R. No. 206716, 2014)
The general rule is that jurisdiction is based on the
allegations in the initiatory pleading. The defenses
in the answer are deemed irrelevant and
immaterial in its determination. (De la Cruz v.
Court of Appeals, G.R. No. 139442, December 6,
2006)
Thus, if by the averments of the complaint, the
court has jurisdiction, it does not lose that
jurisdiction just because the defendant makes a
contrary allegation in his motion or answer or
because the court believes that the plaintiff’s
claims are ridiculous and therefore, untrue.
(Tomas Claudio Memorial College, Inc., v. Court of
Appeals, G.R. No. 124262, 1999)
Exception: In an ejectment case filed with the
MTC, where it has been determined that tenancy
is the real issue, the court should dismiss the case
for lack of jurisdiction. (Hilado v. Chavez, G.R.
134742, Sep. 22, 2004)
Determining Jurisdiction From the Primary
Relief or Ultimate Objective of the Complaint
1. A case denominated as one for cancellation of
several deeds of sale, transfer certificates of
title, and the joint venture agreement was
deemed to be a real action because the
allegations therein actually sought for the
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recovery of real properties. (Serrano v. Delica,
G.R. 136325, Jul. 28, 2005);
2. A complaint was filed for reconveyance of real
property with declaration of nullity of original
certificate of title, alleging that the title had been
obtained by fraud. In determining jurisdiction,
the Court found that the primary relief was to
recover real property. The case did not involve
a subject matter incapable of pecuniary
estimation. (Maslag v. Monzon, G.R. No.
174908, Jun. 17, 2013);
3. A complaint to redeem a land subject of a free
patent is a civil action incapable of pecuniary
estimation. Jurisdiction of the court is
determined by the allegations in the complaint
and the character of the relief sought. His
cause of action being one for specific
performance, it is incapable of pecuniary
estimation and cognizable by the RTC. (Heirs
of Bautista v. Lindo, G.R. No. 208232, 2014).
Note: If the objective of the action to recover
property, title or interest therein – the action is
based on the assessed value of the property.
(See discussion under Jurisdictional Amounts
for Real Actions)
Determining Jurisdictional Amounts for
Personal Actions
In personal actions, the jurisdictional amount
refers to the value of the personal property, estate,
or amount of the demand involved in the civil
action or proceedings. (Cabrera v. Francisco, G.R.
No. 172293)
The jurisdictional amount does not include:
1. Interest;
2. Damages of whatever kind;
3. Attorney’s fees;
4. Litigation expenses; and
5. Costs.
Nevertheless, the above items are included in
determining filing fees. (Sec. 33(1), B.P. 129, as
amended by RA No, 7691)
The exclusion of the term damages of whatever
kind in determining the jurisdictional amount under
Section 19 (8) and Section 33 (1) of B.P. Blg. 129,
as amended by R.A. No. 7691, applies to cases
where the damages are merely incidental to or a
REMEDIAL LAW
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, 2010).
Totality Rule
Where there are several claims or causes of action
between the same or different parties, embodied
in the same complaint, the jurisdictional amount of
the demands shall be the totality of the claims in
all the causes of action, irrespective of whether the
causes of action arose out of the same or different
transactions. (B.P. Blg. 129, Sec. 33[1]; Pantranco
North Express v. Standard Insurance, G.R. No.
140746, 2005).
The totality rule presupposes that the various
claims of the same or different parties are allowed
to be embodied in the same complaint or that the
different causes of action which are joined accrue
in favor of the same plaintiffs or against the same
defendants and that no misjoinder of the parties
are involved. (RIANO, 2019, p. 115)
Determining Jurisdictional Amounts for Real
Actions
The basis for jurisdiction in real actions is the
assessed value of the real property involved as
alleged in the complaint. (Salvador v. Patricia, Inc.
G.R. No. 195834, Nov. 9, 2016)
With the modifications introduced by R.A. No.
7691 in 1994, the jurisdiction of the first level
courts has been expanded to include jurisdiction
over other real actions where the assessed value
does not exceed P20,000, or P50,000 where the
action is filed in Metro Manila. The first level
courts thus have exclusive original jurisdiction over
accion publiciana and accion reinvindicatoria
where the assessed value of the real property
does
not
exceed
the
aforestated
amounts. Accordingly, the jurisdictional element
is the assessed value of the property. (Barrera v.
Legaspi, G.R. No. 174346, 2008)
The assessed value must be alleged in the
complaint to determine which court has jurisdiction
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over the action. (Heirs of Julao v. Spouses de
Jesus, G.R. No. 176020, 2014).
General Rule: If the assessed value is not alleged
in the complaint, the action should be dismissed
for lack of jurisdiction, for the trial court is not
afforded the means of determining from the
allegations of the pleading whether jurisdiction
over the subject matter pertains to it or to another
court. (Cabling v. Dangcalan, G.R. No. 187696,
Jun. 15, 2016)
Exception: The non-inclusion of the assessed
value is not fatal if attached to the complaint is a
tax declaration showing the assessed value of the
property. Annexes to the complaint have been
held to be part of, and should be considered
together with the complaint in determining the
jurisdiction of the court. (Banko Sentral ng
Pilipinas v. Legaspi, G.R. No. 205966, Mar. 2,
2016).
d. Distinguish: doctrine of primary
jurisdiction and doctrine of exhaustion of
administrative remedies
Doctrine of Primary Jurisdiction
The doctrine of primary jurisdiction precludes the
courts from resolving a controversy over which
jurisdiction has initially been lodged in an
administrative body of special competence. (See
also Sta. Ana v. Carpo, GR No. 164340, 2008)
Courts will not resolve a controversy involving a
question which is within the jurisdiction of an
administrative tribunal, especially where the
question demands 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. (Paloma v. Mora, G.R. No.
157783, 2005)
The practice is to refer specialized disputes to
administrative
agencies
of
specialized
competence and the courts will not determine a
controversy prior to the resolution of the question
by the administrative tribunal (Fabia v. Court of
Appeals, G.R. No. 132684, 2002).
Exhaustion of Administrative Remedies
General Rule: If a remedy within the
administrative machinery can still be resorted to by
giving the administrative officer concerned every
opportunity to decide on a matter that comes
within his jurisdiction, then such remedy should be
exhausted first before resort to the courts.
Exception: when the proceeding before the
administrative agency is merely investigative, as
opposed to adjudicative. (Republic v. Transunion
Corp, G.R. No. 191590, 2014).
Effect of Failure to Observe Exhaustion of
Administrative Remedies
Failure to observe the doctrine of exhaustion of
administrative remedies does not affect the
jurisdiction of the Court. We have repeatedly
stressed this in a long line of decisions. The only
effect of non-compliance with this rule is that it will
deprive the complainant of a cause of action (i.e.,
failure to comply with a condition precedent),
which is an affirmative defense.
If not invoked at the proper time, this ground is
deemed waived and the court can take cognizance
of the case and try it. (Republic v. Sandiganbayan,
G.R. No. 112708-09, 1996)
The law’s intendment was to grant jurisdiction over
the enforcement of settlement/arbitration awards
to the city or municipal courts the regardless of the
amount. (Sebastian v. Lagmay, G.R. No. 164594,
2015)
Doctrine of Primary Jurisdiction vs. Doctrine of
Exhaustion of Administrative Remedies
PRIMARY
JURISDICTION
Precludes the courts
from
resolving
a
controversy over which
jurisdiction has been
lodged
in
an
administrative body of
special competence.
EXHAUSTION OF
ADMINISTRATIVE
REMEDIES
Available
remedy
before
an
administrative body
must first be sought
before bringing an
action in court
Rationale is that some Rationale
is
the
controversies demand agency should be
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the exercise of sound
administrative
discretion requiring the
special
knowledge,
experience,
and
services of the tribunal.
given an opportunity
to correct the errors, if
any,
of
its
subordinates.
Involves a situation
where both the court
and
administrative
agency
have
jurisdiction to pass
upon the question.
Involves a situation
where the remedy is
cognizable at first
instance
by
an
administrative
agency
prior
to
judicial review.
Applies to a particular Applies
to
case brought as an administrative
original matter.
remedies
in
the
nature of a review.
Its effect is to suspend
judicial
process
pending referral of such
issues
to
the
administrative
agencies.
Its effect is to
withhold
judicial
interference until the
administrative
process has run its
course.
(DE LEON, Administrative Law, 2016 ed., p.423424; RIANO, 2019, p. 76-77;)
e. Doctrine of adherence of jurisdiction
(continuity of jurisdiction)
Doctrine of Adherence of Jurisdiction or
Continuity of Jurisdiction
See
prior
discussion
on
Doctrine
of
Continuity/Adherence of Jurisdiction.
f. Objections to jurisdiction over subject
matter
The earliest opportunity of a party to raise the
issue of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Failure to
raise such objection shall NOT to be deemed as a
waiver. (Sec. 1, Rule 9) Similarly, lack of
jurisdiction over the subject matter may also be
raised as an affirmative defense. (Sec. 5, Rule 6)
Thus, the prevailing rule is that jurisdiction over the
subject matter may be raised at ANY stage of the
REMEDIAL LAW
proceedings, even for the first time on appeal
(Calimlim v. Ramirez, G.R. No. L-34362, 1982).
Courts may motu propio take cognizance of the
issue even if not raised by the parties themselves
(Asia International Auctioneers v. Parayno, G.R.
No. 163445, 2007).
When the court dismisses the complaint based on
such ground, it cannot refer or forward the case to
another court with the proper jurisdiction. This is
because jurisdiction over the subject is a “matter
of law” and “may not be conferred by consent or
agreement of the parties.” (Villagracia v. Fifth
Shari’a District Court, G.R. No. 188832, 2014)
g. Effects of estoppel on objections to
jurisdiction
While jurisdiction over the subject matter may be
raised at any stage of the proceedings, a party
may still be barred from raising it on the ground of
estoppel or laches. (Tijam v. Sibonghanoy, G.R.
No. L-21450, 1968).
The general rule is that the issue of jurisdiction
may be raised at any stage of the proceedings,
even on appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a litigant from
asserting the court’s absence or lack of
jurisdiction, only supervenes in exceptional cases
similar to the factual milieu of Tijam v.
Sibonghanoy. The fact that a person attempts to
invoke unauthorized jurisdiction of a court does not
estop him from thereafter challenging its
jurisdiction over the subject matter, since such
jurisdiction must arise by law and not by mere
consent of the parties. (Figueroa v. People, G.R.
No. 147406, 2008)
Courts are not only courts of law but also of equity.
Thus, where the respondent did not vigorously
question the jurisdiction of the court and instead
actively participated for ten years, a motion to
dismiss based on lack of jurisdiction would render
the effort, time and expenses of the parties for
naught. (Bernardo v. Heirs of Villegas, G.R. No.
183357, 2010)
If the lower court had jurisdiction, and the case
was heard and decided upon a given theory, for
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instance, that the court had no jurisdiction, the
party who induced it to adopt such theory will not
be permitted, on appeal, to assume an
inconsistent position that the lower court had
jurisdiction. (Cudiamat v. Batangas Savings, G.R.
No. 182403, 2010).
REMEDIAL LAW
4. JURISDICTION OVER THE RES OR
PROPERTY IN LITIGATION
Definition; How Acquired
Jurisdiction over the res refers to the court’s
jurisdiction over the thing or property which is the
subject of the action. (RIANO, 2019, p. 95)
3. JURISDICTION OVER THE ISSUES
Jurisdiction over the issues refers to the power of
the court to try and decide the issues raised in the
pleadings of the parties. (Reyes v. Diaz, G.R. No.
L-48754, 1941)
An ISSUE is a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision. (RIANO, 2019, p.
92)
With respect to an issue raised by the pleadings,
an issue arises because the material allegations of
a claiming party are specifically denied by the
defending party. (Id.)
How Conferred and Determined:
General Rule: It is conferred and determined by
the pleadings of the parties that present the issues
to be tried and determined whether or not the
issues are of fact or of law. (Id.)
Exceptions:
It may be conferred:
1. By stipulation of the parties, as when in the pretrial, the parties enter into stipulations of facts
and documents or enter into an agreement
simplifying the issues of the case. (Sec. 2 (b),
Rule 18);
2. By express or implied consent of the parties,
when issues not raised by the pleadings are
tried, such issues shall be treated in all
respects as if they had been raised in the
pleadings. (Sec. 5, Rule 10)
Effect of No Issue in a Case
It is proper for the court to render judgment on the
pleadings if the answer fails to tender an issue,
except in actions for declaration of nullity of
annulment of marriage or legal separation. (Sec.
1, Rule 34).
Jurisdiction over the res or property in litigation is
acquired either by:
1. Actual or constructive seizure of the property
under legal process, whereby it is brought into
the custody of the law; or
2. As a result of the institution of legal proceedings,
in which the power of the court is recognized
and made effective (Biaco v. Philippine
Countryside Rural Bank, G.R. No. 161417,
2007).
If the action is in rem or quasi in rem, jurisdiction
over the person of the defendant is not required.
What is required is jurisdiction over the res,
although summons must be served upon the
defendant in order to satisfy the requirements of
due process (Gomez v. CA, G.R. No. 127692,
2004)
In cases where jurisdiction over the person of a
defendant cannot be acquired, the preliminary
seizure is to be considered necessary in order to
confer jurisdiction upon the court. In this case the
lien on the property is acquired by the seizure; and
the purpose of the proceedings is to subject the
property to that lien. (El Banco Español-Filipino v.
Palanca, G.R. No. L-11390, Mar. 26, 1918) In this
instance, the action is converted from one in
personam to one in rem. (Villareal v. CA, G.R. No.
107314, 1998.)
5. JURISDICTION OVER THE REMEDIES
Fundamental is the rule that the provisions of the
law and the rules concerning the manner and
period of appeal are mandatory and jurisdictional
requirements; hence, cannot simply be discounted
under the guise of liberal construction.(Zosa v.
Consilium, Inc., G.R. No. 196765, Sep. 19, 2018).
Post-judgment remedies, such as an appeal, is
neither a natural right nor is a component of due
process. It is a mere statutory privilege and may
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be exercised only in the manner and in
accordance with the provisions of the law. (People
v. Hilario, G.R. No. 210610, Jan. 11, 2018)
Establishes a relation Establishes a relation
between plaintiff and between the court and
defendant,
or the subject matter
petitioner
and
respondent
E. DISTINGUISH: ERROR OF
JURISDICTION VS. ERROR OF
JUDGMENT
May be conferred by Fixed by law and
the act or agreement cannot be conferred
of the parties.
by agreement of the
parties
ERROR OF
JURISDICTION
ERROR OF
JUDGMENT
Occurs when the court
exercises a jurisdiction
not conferred upon it
by law or when a court
or tribunal acts in
excess
of
its
jurisdiction or with
grave abuse of its
discretion.
Occurs when a court
or tribunal clothed with
jurisdiction
commits
mistakes
in
the
appreciation of the
facts and evidence
leading
to
an
erroneous judgment.
Correctible
certiorari
by Correctible by appeal
The venue, being
improperly laid, is not
a ground for a motion
to dismiss, but can be
raised
as
an
affirmative
defense.
(Sec. 12, Rule 8).
Lack of jurisdiction
over the subject matter
is both a ground for a
motion to dismiss and
an
affirmative
defense. (Sec. 5 (b),
Rule 6; Sec. 12, Rule
15).
May be waived only in Cannot be waived.
civil cases. In criminal
cases,
venue
is
jurisdictional.
(RIANO, 2019, p. 163-164)
(RIANO, 2019, p.64-65)
F. JURISDICTION VS. VENUE
VENUE is the place, or the geographical area
where an action is to be filed and tried. (Manila
Railroad Company v. Attorney General, G.R. No.
L-6287, 1911)
JURISDICTION is the power and authority of the
tribunal to hear, try and decide a case.
(Veneracion v. Mancilla, G.R. No. 158238, 2006)
VENUE
JURISDICTION
The place where the The authority to hear
case is to be heard or and determine a case
tried (e.g., Regional
Trial Court of Makati
City or Quezon City)
A matter of procedural A
matter
law
substantive law
of
G. JURISDICTION OVER SMALL CLAIMS,
CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
RULE ON SMALL CLAIMS
Scope and Applicability of Rules for Small
Claims Cases
The Rules of Procedure for Small Claims Cases
shall govern the procedure in the Metropolitan
Trial Courts (MeTCs), Municipal Trial Courts in
Cities (MTCCs), Municipal Trial Courts (MTCs),
and Municipal Circuit Trial Courts (MCTCs)
involving all actions that 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 claims or demands may be:
1. For money owed under a contract of lease, loan,
services, sale, or mortgage;
2. For liquidated damages arising from contracts;
3. Enforcement of a barangay amicable
settlement; or
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4. Arbitration award involving a money claim
covered by this Rule pursuant to the Local
Government Code. (Sec. 5, Revised Rules of
Procedure for Small Claims Cases, as
amended)
These Rules shall govern the procedure in actions
before the MTCs for payment of money where the
value of claim does not exceed the jurisdictional
amount of P400,000.00 for the MeTCs and
P300,000.00 for the MTCCs, MTCs, and MCTCs,
exclusive of interest and cost. (Sec. 2, Revised
Rules of Procedure for Small Claims Cases, as
amended)
Venue
For small claims cases, the regular rules of venue
shall apply, at the election of the plaintiff, in the
MeTC, MTCC, MTC, and MCTC:
1. Where the plaintiff resides;
2. Where the defendant resides; or
3. Where he may be found, in the case of a nonresident defendant.
However, if the plaintiff is engaged in the business
of lending, banking and similar activities, in the city
where the defendant resides, if the plaintiff has a
branch in that city. (Sec. 7, Revised Rules of
Procedure for Small Claims Cases, as amended)
KATARUNGANG PAMBARANGAY
(A.C. No. 14-93)
General Rule:
ALL disputes between individuals/natural persons
are subject to barangay conciliation pursuant to
the Revised Katarungang Pambarangay Law and
prior recourse thereto is a pre-condition before
filing a complaint in court or any government
offices is allowed.
There must have been confrontation between the
parties before the lupon chairman or pangkat and
a showing that there was no settlement reached or
that it was repudiated by the parties before a
complaint, petition, action or proceeding may be
filed or instituted in court or in a government office
for adjudication.
REMEDIAL LAW
Exceptions:
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. Where the dispute involves real properties
located in different cities and municipalities,
unless the parties thereto agree to submit their
difference to amicable settlement by an
appropriate Lupon;
4. 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 [Sec. 1, Rule VI,
Katarungang Pambarangay Rules];
5. 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;
6. Offenses for which the law prescribes a
maximum penalty of imprisonment exceeding
one [1] year or a fine of over P5,000.00.
7. Offenses where there is no private offended
party;
8. Disputes where urgent legal action is necessary
to prevent injustice from being committed or
further continued, specifically the following:
a) Criminal cases where accused is under
police custody or detention [Sec. 412 (b) (1),
Revised Katarungang Pambarangay Law];
b) Petitions for habeas corpus by a person
illegally deprived of his rightful custody over
another or a person illegally deprived of or
on acting in his behalf;
c) Actions coupled with provisional remedies
such as preliminary injunction, attachment,
delivery of personal property and support
during the pendency of the action;
d) Actions which may be barred by the Statute
of Limitations.
9. Any class of disputes, which the President may
determine in the interest of justice or upon the
recommendation of the Secretary of Justice;
10. Where the dispute arises from the
Comprehensive Agrarian Reform Law (Secs.
46 & 47, R. A. 6657);
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11. Labor disputes or controversies arising from
employer-employee relations (Montoya v.
Escayo, et al., G.R. No. 82211-12, 1989); (Art.
226, Labor Code)
12. Actions to annul judgment upon a compromise
that may be filed directly in court (Sanchez v.
Tupaz, G.R. No. 76690, 1988)
A case filed in court without compliance with prior
barangay conciliation, which is a pre-condition for
formal adjudication, may be dismissed upon
motion of defendant/s on the ground of failure to
comply with a condition precedent. The nonreferral of a case for barangay conciliation is not
jurisdictional in nature, thus it necessitates a
motion to dismiss before it may be considered by
the Court. (Royales v. Intermediate Appellate
Court, G.R. No. L-65072, Jan. 31, 1984).
A prior recourse to barangay conciliation is a precondition before filing a complaint in court or any
government offices. Non-compliance with the
said condition precedent could affect the
sufficiency of the plaintiff’s cause of action and
make his complaint vulnerable to dismissal on
ground of lack of cause of action or prematurity;
but the same would not prevent a court of
competent jurisdiction from exercising its power of
adjudication over the case before it, where the
defendants failed to object to such exercise of
jurisdiction. (Sps. Santos v. Sps. Lumbao, G.R.
No. 169129, 2007)
Interruption of Prescriptive Period:
While the dispute under mediation, conciliation, or
arbitration, the prescriptive periods for offenses
and cause of action under existing laws shall be
interrupted upon filing of the complaint with the
Punong Barangay.
Agreement to Arbitrate:
The parties may, at any stage of the proceedings,
agree in writing to have the matter in dispute
decided by arbitration by the Lupon Chairman or
Pangkat.
RULE ON SUMMARY PROCEDURE
The rule shall govern the summary procedure in
the MeTCs, MTCCs, MTCs, and MCTCs.
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Scope and Applicability of Rules on Summary
Procedure for Civil Cases
1. All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or
unpaid rentals sought to be recovered, but if
attorney’s fees are awarded, the same shall not
exceed P20,000.00; and
2. All other cases, except probate proceedings,
where the total amount of the plaintiff’s claim
does not P100,000 or P200,000 in Metropolitan
Manila, exclusive of interests and costs. (Sec.
1(A), Revised Rule on Summary Procedure, as
amended)
In small claims cases, the following amounts are
excluded in determining jurisdictional amount:
1. Interest;
2. Costs.
(Sec. 1(A)(2), Revised Rule on Summary
Procedure, as amended)
Scope and Applicability of Rules on Summary
Procedure for Criminal Cases
1. Traffic violations.
2. Rental law violations.
3. Violations of city or municipal ordinances.
4. Violations of B.P. 22 (Bouncing Checks Law).
5. All other cases where penalty does NOT exceed
6 months and/or fine of P1K, irrespective of
other imposable penalties, accessory or
otherwise.
6. In offenses involving damage to property
through criminal negligence, where the
imposable fine does not exceed P10K.
(Sec. 1 (B), Revised Rule on Summary Procedure,
as amended)
Exception:
The Rule on Summary Proceedings shall not apply
to a civil case where the plaintiff’s cause of action
is pleaded in the same complaint with another
cause of action subject to the ordinary procedure.
Nor is it applicable to a criminal case where the
offense charged is necessarily related to another
criminal case subject to the ordinary procedure.
(Sec. 1, Revised Rule on Summary Procedure, as
amended)
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Appeal:
The judgment or final order shall be appealable to
the appropriate Regional Trial Court.
The decision of the Regional Trial Court in civil
cases governed by this Rule, including forcible
entry and unlawful detainer, shall be immediately
executory, without prejudice to further appeal that
may be taken therefrom. (Sec. 22, Revised Rule
on Summary Procedure, as amended)
H. HOW JURISDICTION IS DETERMINED
See prior discussion on How Jurisdiction is
Conferred and Determined.
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III. CIVIL PROCEDURE
TOPIC OUTLINE UNDER THE SYLLABUS:
III. CIVIL PROCEDURE
A. GENERAL PROVISIONS
B. ACTIONS
1. Meaning of ordinary civil actions
2. Meaning of special civil actions
3. Meaning of criminal actions
4. Distinguish: civil actions and special
proceedings
5. Personal actions and real actions
6. Local and transitory actions
7. Actions in rem, in personam and quasi in
rem
C. CAUSE OF ACTION
1. Meaning of cause of action
2. Distinguish: right of action and cause of
action
3. Distinguish: failure to state a cause of action
and lack of cause of action
4. Test of the sufficiency of a cause of action
5. Splitting a single cause of action and its
effects
6. Joinder and misjoinder of causes of action
D. PARTIES TO CIVIL ACTIONS
1. Real parties in interest; indispensable
parties; representatives as parties;
necessary parties; indigent parties;
alternative defendants
2. Compulsory and permissive joinder of
parties
3. Misjoinder and non-joinder of parties
4. Class suit
5. Suits against entities without juridical
personality
6. Effect of death of party litigant
E. VENUE
1. Venue of real actions
2. Venue of personal actions
3. Venue of actions against non-residents
4. When the rules on venue do not apply
5. Effects of stipulations on venue
F. PLEADINGS
1. Kinds of pleadings and when they should be
filed
a. Complaint
b. Answer
i. Negative defenses
ii. Negative pregnant
c. Counterclaims
i. Compulsory counterclaim
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ii. Permissive counterclaim
iii. Effect on the counterclaim when the
complaint is dismissed
d. Cross-claims
e. Third (fourth, etc.) party complaints
f. Complaint-in-intervention
g. Reply
h. Extensions of time to file
2. Pleadings allowed in small claims cases
and cases covered by the Rules on
Summary Procedure
3. Parts and contents of a pleading
a. Caption
b. Signature and address
c. Verification
d. Certification against forum shopping
e. Contents of a pleading
4. Allegations in a pleading
a. Manner of making allegations
i. Condition precedent
ii. Fraud, mistake, malice, intent,
knowledge and other condition of the
mind, judgments, official documents or
acts
b. Pleading an actionable document
c. Specific denials
i. Effect of failure to make specific
denials
ii. When a specific denial requires an
oath
d. Affirmative defenses
5. Effect of failure to plead
a. Failure to plead defenses and objections
b. Failure to plead a compulsory
counterclaim and cross-claim
6. Default
a. When a declaration of default is proper
b. Effect of an order of default
c. Relief from an order of default
d. Effect of a partial default
e. Extent of relief
f. Actions where default are not allowed
7. Filing and service of pleadings
a. Payment of docket fees
b. Distinguish: filing and service of
pleadings
c. Periods of filing of pleadings
d. Manner of filing
i. Personal filing
ii. Filing by registered mail
iii. Filing by accredited courier
iv. Transmittal by electronic mail or
other electronic means
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e. Modes of service
i. Personal service
ii. Service by registered mail
iii. Service by accredited courier
iv. Service by electronic mail, facsimile
transmission, or other electronic
means
v. Service as provided for in
international conventions
f. Service of judgments, final orders or
resolutions; service of court-issued
orders and other documents
g. Conventional service or filing of orders,
pleadings, and other documents
h. When service is deemed complete
i. Proof of filing and service
8. Amendment
a. Amendment as a matter of right
b. Amendments by leave of court
c. Formal amendment
d. Effect of amended pleading
e. Supplemental pleadings
G. SUMMONS
1. Nature and purpose of summons
a. In relation to actions in personam, in rem
and quasi in rem
b. When summons are issued
c. Contents of summons
d. Duty of counsel
e. Return
2. Voluntary appearance
3. Who may serve summons
4. Personal service
5. Substituted service
6. Constructive service
a. Service upon a defendant where his
identity is unknown or where his
whereabouts are unknown
b. Service upon residents temporarily
outside the Philippines
7. Extraterritorial service, when allowed
8. Service upon prisoners and minors; upon
spouses
9. Service upon domestic or foreign private
juridical entities
10. Proof of service
H. MOTIONS
1. Motions in general
a. Definition of a motion
b. Distinguish: motions and pleadings
c. Contents and form of motions
d. Litigious and non-litigious motions; when
notice of hearing necessary
REMEDIAL LAW
e. Omnibus motion rule
f. Prohibited motions
2. Motions for Bill of Particulars
a. Purpose and when applied for
b. Actions of the court
c. Compliance with the order and effect of
noncompliance
d. Effect on the period to file a responsive
pleading
I. DISMISSAL OF ACTIONS
1. Dismissal with prejudice
2. Dismissal upon notice by plaintiff
3. Dismissal upon motion by plaintiff; effect on
existing counterclaim
4. Dismissal due to the fault of plaintiff
5. Dismissal of counterclaim, cross-claim or
third-party complaint
J. PRE-TRIAL
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; effect of failure to
appear
5. Pre-trial brief; effect of failure to appear
6. Pre-trial order
7. Distinguish: pre-trial in civil cases and pretrial in criminal cases
K. INTERVENTION
1. Requisites for intervention
2. Time to intervene
3. Remedy for the denial of motion to
intervene
L. SUBPOENA
1. Subpoena duces tecum
2. Subpoena ad testificandum
3. Service of subpoena
4. Compelling attendance of witnesses;
contempt
5. Quashing of subpoena
M. COMPUTATION OF TIME
N. MODES OF DISCOVERY
1. Depositions pending action; depositions
before action or pending appeal
a. Meaning of deposition
b. Uses; scope of examination
c. When may objections to admissibility be
made
d. When may taking of deposition be
terminated or its scope limited
2. Written interrogatories to adverse parties
a. Consequences of refusal to answer
b. Effect of failure to serve written
interrogatories
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3. Request for admission
a. Implied admission by adverse party
b. Consequences of failure to answer
request for admission
c. Effect of admission
d. Effect of failure to file and serve request
for admission
4. Production or inspection of documents or
things
5. Physical and mental examination of
persons
6. Consequences of refusal to comply with
modes of discovery
O. TRIAL
1. Adjournments and postponements
2. Requisites of motion to postpone trial
a. For absence of evidence
b. For illness of party or counsel
3. Agreed statement of facts
4. Order of trial; reversal of order
5. Consolidation or severance of hearing or
trial
6. Delegation of reception of evidence
7. Trial by commissioners
a. Reference by consent or ordered on
motion
b. Powers of the commissioner
c. Commissioner's report; notice to parties
and hearing on the report
P. DEMURRER TO EVIDENCE
1. Ground
2. Effect of denial
3. Effect of grant
4. Waiver of right to present evidence
5. Distinguish: Demurrer to evidence in a civil
case and demurrer to evidence in a
criminal case
Q. JUDGMENTS AND FINAL ORDERS
1. Judgment after pre-trial
2. Judgment without trial
3. Judgment on the pleadings
4. Summary judgments
a. For the claimant
b. For the defendant
c. When the case not fully adjudicated
d. Affidavits and attachments
5. Distinguish: judgment on the pleadings and
summary judgments
6. Contents of a judgment
7. Rendition of judgments and final orders
8. Entry of judgment and final order
R. POST-JUDGMENT REMEDIES
1. Motion for new trial or reconsideration
REMEDIAL LAW
a. Grounds
b. When to file
c. Denial of the motion; effect
d. Grant of the motion; effect
e. Remedy when motion is denied, fresh
15-day period rule
2. Appeals in general
a. Judgments and final orders subject to
appeal
b. Matters not appealable
c. Remedy against judgments and orders
which are not appealable
d. Modes of appeal
i. Ordinary appeal
ii. Petition for review
iii. Petition for review on certiorari
e. Issues to be raised on appeal
f. Period of appeal
g. Perfection of appeal
h. Appeal from judgments or final orders of
the Metropolitan Trial Courts/Municipal
Trial Courts/Municipal Trial Courts in
Cities/Municipal Circuit Trial Courts
i. Appeal from judgments or final orders of
the Regional Trial Courts
j. Appeal from judgments or final orders of
the Court of Appeals
k. Appeal from judgments or final orders of
the Sandiganbayan
l. Appeal from judgments or final orders of
the Court of Tax Appeals
m. Review of final judgments or final orders
of the Commission on Audit
n. Review of final judgments or final orders
of the Commission on Elections
o. Review of final judgments or final orders
of the Civil Service Commission
p. Review of final judgments or final orders
of the Ombudsman
q. Review of final judgments or final orders
of the National Labor Relations
Commission
r. Review of final judgments or final orders
of quasi-judicial agencies
3. Relief from judgments, orders and other
proceedings
a. Grounds for availing of the remedy
b. Time to file petition
c. Contents of petition
4. Annulment of Judgments or final orders and
resolutions
a. Grounds for annulment
b. Period to file action
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c. Effects of judgment of annulment
5. Collateral attack of judgment
S. EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
1. Difference between finality of judgment for
purposes of appeal; for purposes of
execution
2. When execution shall issue
a. Execution as a matter of right
b. Discretionary execution
3. How judgment is executed
a. Execution by motion or by independent
action
b. Issuance and contents of a writ of
execution
c. Execution of judgments for money
d. Execution of judgments for specific acts
e. Execution of special judgments
f. Effect of levy on third persons
4. Properties exempt from execution
5. Proceedings where property is claimed by
third persons; in relation to third party claim
in attachment and replevin
6. Rules on redemption
7. Examination of judgment obligor when
judgment is unsatisfied
8. Examination of obligor of judgment obligor
9. Effect of judgment or final orders
10. Enforcement and effect of foreign
judgments or final orders
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A. GENERAL PROVISIONS
Applicability of the Rules of Court
The Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court. (Sec. 2,
Rule 1).
Cases when the Rules are Available and Not
Available
Cases where Rules are available:
1. Civil cases;
2. Criminal cases;
3. Special Proceedings. (Sec. 3, Rule 1).
Cases where Rules are not available
1. Election cases;
2. Land registration;
3. Cadastral;
4. Naturalization;
5. Insolvency proceedings; and
6. Other cases not herein provided for.
Except by analogy or in a suppletory character and
whenever practicable and convenient. (Sec. 4,
Rule 1).
How Cases are Commenced
A civil action is commenced by the filing of the
original complaint in court. (Sec. 5, Rule 1).
If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to
him on the date of the filing of such later
pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.
(Id.).
Construction
The Rules are liberally construed in order to
promote their objective of securing a just, speedy,
and inexpensive disposition of every action and
proceeding. (Sec. 6, Rule 1).
Rule 1, Section 6 of the Rules of Court provides
that 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.” However, resort to liberal
construction must be rational and well-grounded,
and its factual bases must be so clear such that
they outweigh the intent or purpose of an apparent
reading of the rules. (Viva Shipping Lines Inc., v.
REMEDIAL LAW
Keppel Philippines Mining Inc., GR No. 177382, 17
February 2016)
B. ACTIONS
1. MEANING OF ORDINARY CIVIL ACTIONS
Meaning of Actions and Ordinary Civil Actions
An action is a formal demand of one's legal rights
in a court of justice in the manner prescribed by
the court or by the law. It is the method of applying
legal remedies according to definite established
rules. (Hagans v. Wislizenus, G.R. No. 16680,
Sep. 13, 1920).
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. (Sec. 3 (a)(1),
Rule 1).
An ordinary action includes those proceedings
which are instituted and prosecuted according to
the ordinary rules and provisions relating to
actions at law or suits in equity. (Natcher v. Court
of Appeals, G.R. No. 133000, Oct. 2, 2001).
A civil action may be either ordinary or special.
(Sec. 3 (a)(1), Rule 1).
2. MEANING OF SPECIAL CIVIL ACTIONS
A special civil action contains special features
not found in ordinary civil actions. It is also
governed by rules on ordinary civil actions, subject
to specific rules (Rules 62-71) for special civil
actions. (Id.).
3. MEANING OF CRIMINAL ACTIONS
A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law. (Sec. 3 (b), Rule 1).
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4. CIVIL ACTIONS VERSUS SPECIAL
PROCEEDINGS
CIVIL ACTIONS
One by which a party
sues another for the
enforcement
or
protection of a right or
the prevention or
redress of a wrong.
(Sec. 3 (a)(1), Rule 1).
SPECIAL
PROCEEDINGS
Remedy by which
party
seeks
to
establish the status or
right of a party, or a
particular fact. (Sec. 3
(c), Rule 1).
5. PERSONAL ACTIONS AND REAL
ACTIONS
Real Actions, Defined
Real actions are those which affect title to or
possession of real property or an interest therein.
(Sec. 1, Rule 4).
For an action to be a real action, it is not enough
that the action must deal with real property. It is
important that the matter in litigation must involve
or affect title to or possession of real property or
any interest therein. (RIANO, 2019, p. 216).
Personal Actions, Defined
Personal actions are all other actions, except
criminal actions, not involving title to or possession
of real property or any interest therein. It involves
actions in which personal property is sought to be
recovered or damages for breach of contract are
sought. (Sec. 2, Rule 4).
Importance of Knowing the Distinction
Between Real and Personal Actions
The distinction between real and personal action
is important for the purpose of determining the
venue of the action and knowing which court has
jurisdiction. (RIANO, 2019, p. 220).
6. LOCAL AND TRANSITORY ACTIONS
A real action is local, i.e., its venue depends upon
the location of the property involved in the
litigation. It is filed in the court where the property
or any part thereof is situated. (Sec. 1, Rule 4;
supra).
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A personal action is transitory, i.e., its venue
depends upon the residence of the plaintiff or the
defendant at the option of the plaintiff. An example
of such action is recovery of sum of money. (Sec.
2, Rule 4, supra).
7. ACTIONS IN REM, IN PERSONAM, AND
QUASI IN REM
Actions in Rem
An action in rem is:
1. A proceeding to determine the state or condition
of a thing;
2. Directed against the thing itself;
3. Jurisdiction over the person of the defendant is
not required; and
4. Judgment is binding on the whole world.
(Frias v. Alcayde, G.R. No. 194262, Feb. 28,
2018).
In an action in rem, jurisdiction over the res (or
thing) is acquired either: (a) by the seizure of the
property under legal process, whereby it is brought
into actual custody of the law; or (b) as a result of
the institution of legal proceedings, in which the
power of the court is recognized and made
effective. (Alba v. Court of Appeals, G.R. No.
164041, Jul. 29, 2005).
Examples of actions in rem are: petition for
adoption, correction of entries in the birth
certificate; or annulment of marriage; nullity of
marriage; petition to establish illegitimate filiation;
registration of land under the Torrens system; and
forfeiture proceedings. (Frias v. Alcayde, G.R. No.
194262, Feb. 28, 2018).
Nevertheless, in a proceeding in rem, summons
must be served upon the defendant not for the
purpose of vesting the court with jurisdiction but
merely for satisfying the due process
requirements. (Gomez v. CA, G.R. No. 127692,
Mar. 10, 2004)
Actions in Personam
1. An action to impose a responsibility or liability
upon a person directly.
2. Directed against a particular person.
3. Jurisdiction over the person of the defendant is
required.
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4. Judgment is binding only upon the parties
impleaded or their successors in interest.
(Frias v. Alcayde, G.R. No. 194262, Feb. 28,
2018).
between the parties and does not bind the State or
the other riparian owners who may have an
interest over the island involved herein. (Jagualing
v. Court of Appeals, G.R. No. 94283, Mar. 4, 1991)
Where the action is in personam, that is, one
brought against a person on the basis of her
personal liability, jurisdiction over the person of the
defendant is necessary for the court to validly
try and decide the case. Service of summons
upon the defendants is essential in order for the
court to acquire jurisdiction over their persons.
(Velayo-Fong v. Spouses Velayo, G.R. No.
155488, Dec. 6, 2006).
Converting an Action In Personam to an Action
In Rem or Quasi In Rem
If the defendant is a non-resident and, who
remains beyond the range of the personal process
of the court and he refuses to come in voluntarily,
the court never acquires jurisdiction over the
person at all. Here the property itself is in fact the
sole thing which is impleaded and is the
responsible object which is the subject of the
exercise of judicial power. It follows that the
jurisdiction of the court in such case is based
exclusively on the power which, under the law, it
possesses over the property. Upon acquisition of
jurisdiction over the property, the court can validly
hear the case. (El Banco Español-Filipino v.
Palanca, G.R. No. L-11390, Mar. 26, 1918).
Examples of actions in personam are: action for
collection of sum of money and damages; action
for unlawful detainer or forcible entry; action for
specific performance; action to enforce a foreign
judgment in a complaint for a breach of contract.
(Frias v. Alcayde, G.R. No. 194262, Feb. 28,
2018).
Actions Quasi in Rem
1. It is a proceeding, the purpose of which is to
subject the interest of a named defendant over
a particular property to an obligation or lien
burdening it.
2. Directed against particular persons.
3. Jurisdiction over the person of the defendant is
not required as long as jurisdiction over the res
is acquired.
4. Judgment is binding upon the particular
persons. (Id.).
Similar to an action in rem, in actions quasi in rem,
jurisdiction over the person of the defendant is not
a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over
the res. (Banco Do Brasil v. Court of Appeals,
G.R. Nos. 121576-78, Jun. 16, 2000).
Examples of actions quasi in rem: suits to quiet
title; actions for foreclosure; and attachment
proceedings. (Frias v. Alcayde, G.R. No. 194262,
Feb. 28, 2018).
In converting an action in personam against a nonresident defendant, to an action in rem or quasi in
rem, jurisdiction over the res must be acquired by
attachment. (Perkin Elmer Singapore Pte Ltd. v.
Dakila Trading Corp., G.R. No. 172242, Aug. 14,
2007)
But it does not mean that notice or summons to the
parties interested is not necessary. Due process
still requires that they be notified and given an
opportunity to defend their interest. (Gomez v. CA,
G.R. No. 127692, Mar. 10, 2004). This is satisfied
through extraterritorial service. (Sec. 17, Rule 14).
Importance of Distinction Between Actions In
Rem, In Personam and Quasi In Rem
The distinction between the three types of actions
is important to determine:
1. Whether or not jurisdiction over the person of
the defendant is required;
2. The type of summons to be employed and how
it is served; and
3. Upon whom judgment is binding.
An action quasi in rem is an action in personam
concerning real property. Thus, the judgment in
proceedings of this nature is conclusive only
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C. CAUSE OF ACTION
of the primary rights of the plaintiff. (Sec. 2, Rule
2).
1. MEANING OF CAUSE OF ACTION
A cause of action is an act or omission of one
party in violation of the legal rights of another.
(Sec. 2, Rule 2).
Every ordinary civil action must be based on a
cause of action. (Sec. 1 Rule 2).
Elements of a Cause of Action (ROB):
1. Legal Right of the plaintiff;
2. Correlative Obligation of the defendant to
respect plaintiff’s right;
3. Act or omission (i.e. Breach) of the defendant in
violation of plaintiff’s legal right.
(Heirs of Spouses Mesina v. Heirs of Fian, Sr.,
G.R. No. 201816, Apr. 8, 2013).
Recall: The obligations referred to above are
those arising from: (Civil Code, Art. 1157):
1. Law
2. Contract
3. Quasi-Contract
4. Delict
5. Quasi-Delict
Even a third party outside the contract can have a
cause of action against either or both contracting
parties, provided all the above requisites are
present. (Camarines Sur IV Electric Cooperative,
Inc. v. Aquino, G.R. No. 167691, 2008).
The phrase “financial and business difficulties” in
the complaint is a vague notion, ambiguous in
concept. With no “particular injury” alleged in the
complaint, there is no delict or wrongful act or
omission attributable to the petitioner that would
violate the primary rights of the respondent; thus,
there is failure to state a cause of action. (VinzonsChato v. Fortune, G.R. No. 141309, December 23,
2008)
2. DISTINGUISH: RIGHT OF ACTION AND
CAUSE OF ACTION
Cause of Action
A cause of action is a delict or wrongful act or
omission committed by the defendant in violation
Right of Action
“Right of action" is the right to commence and
maintain an action. The right of action springs from
the cause of action but does not accrue until all the
facts which constitute the cause of action have
occurred. (Spouses Borbe v. Calalo, G.R. No.
152572, Oct. 5, 2007).
It is the right of a person to bring and prosecute an
action to obtain a judgment, the elements of which
are as follows:
1. There must be a cause of action;
2. Compliance with all the conditions precedents;
and
3. Action must be instituted by the proper party.
(Turner v. Lorenzo Shipping Corp., G.R. No.
157479, Nov. 24, 2010).
Performance or fulfillment of all conditions
precedent upon which a right of action depends
must be sufficiently alleged, considering that the
burden of proof to show that a party has a right of
action is upon the person initiating the suit.
(Philippine American General Insurance Co., v.
Sweet Lines, G.R. No. 87434, Aug. 5, 1992)
CAUSE OF ACTION
RIGHT OF ACTION
An act or omission of
one party in violation of
the legal rights of
another.
Formal statement of
operational facts that
give rise to remedial
rights.
Governed
by
substantive law.
The reason for the
action.
Not
affected
by
affirmative defenses.
Right to commence
and maintain an action.
A
remedial
right
belonging to persons.
Governed
by
procedural law.
The remedy afforded.
May be lost or waived
due
to
affirmative
defenses.
(Multi-Realty Development Corp. v. Makati
Tuscany Condominium Corp., G.R. No. 146726,
Jun. 16, 2006; Turner v. Lorenzo Shipping Corp.).
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3. DISTINGUISH: FAILURE TO STATE A
CAUSE OF ACTION AND LACK OF CAUSE
OF ACTION
Failure to State a Cause of Action
The failure to state a cause of action refers to
insufficiency of allegation in the pleading. Its
examination is limited to the complaint, whether it
contains an averment of the 3 essential elements
of a cause of action. The test is whether or not,
admitting hypothetically the allegations of fact
made in the complaint, a judge may validly grant
the relief demanded. (Philippine National Bank v.
Abello, G.R. No. 242570, Sep.18, 2019).
If the allegations of the complaint do not state the
concurrence of the elements of a cause of action,
the complaint becomes vulnerable to a motion to
dismiss on the ground of failure to state a cause of
action. (Zuñiga-Santos v. Santos-Gran, G.R. No.
197380, Oct. 8, 2014).
NOTE: Under the 2019 Amendments, failure to
state cause of action is now an affirmative defense
(see Sec. 12, Rule 8), and a motion to dismiss is
now a prohibited pleading, save for certain
grounds (see, Sec. 12, Rule 15).
Lack of Cause of Action
Lack of cause of action refers to the insufficiency
of factual basis for the action. (Philippine National
Bank v. Abello, G.R. No. 242570, Sep.18, 2019).
In a dismissal due to lack of cause of action, the
court, in effect, declares that the plaintiff is not
entitled to a favorable judgment for failure to
substantiate his or her cause of action by
preponderance of evidence. Considering that
questions of fact are involved, the dismissal of the
complaint due to "lack of cause of action" is usually
made after trial, when the parties are given the
opportunity to present all relevant evidence on
such question of fact. (Id.).
If the plaintiffs claim lacks a cause of action, the
procedural recourse is for the respondent to raise
such ground in a demurrer to evidence taken only
after the plaintiff's presentation of evidence.
(Zuñiga-Santos v. Santos-Gran, G.R. No. 197380,
Oct. 8, 2014).
REMEDIAL LAW
FAILURE TO STATE
LACK OF CAUSE
A CAUSE OF
OF ACTION
ACTION
Insufficiency of the Insufficiency of the
allegations in the factual basis for the
pleading.
action.
Raised
before
a Raised
after
the
responsive pleading plaintiff has rested its
has been filed.
case.
Remedy is to raise the Remedy is to file a
same
as
an Demurrer to Evidence
affirmative defense in under Rule 33, Sec. 1.
the answer. (see Sec.
12, Rule 8).
(Asia Brewery, Inc. v. Equitable PCI Bank, G.R.
No. 190432, Apr. 25, 2017).
4. TEST OF SUFFICIENCY OF A CAUSE OF
ACTION
The cause of action in a complaint is not what the
designation of the complaint states, but what the
allegations in the body of the complaint define and
describe.. (Dela Cruz v. Court of Appeals, G.R.
No. 139442, Dec. 6, 2006).
The test of the sufficiency of the facts alleged in
the complaint as constituting a cause of action is
whether or not admitting the facts alleged, the
court could render a valid verdict in accordance
with the prayer of the complaint. (see Misamis
Occidental II Cooperative v. David, G.R. No.
129928, Aug. 25, 2005)
If the allegations in the complaint furnish sufficient
basis by which the complaint can be maintained,
the same should not be dismissed regardless of
the defense that may be raised by the defendants.
(Ceroferr Realty Corp. v. Court of Appeals, G.R.
No.
139539,
2002)
In order to sustain a dismissal on the ground of
lack of cause of action, the insufficiency must
appear on the face of the complaint. And the test
of the sufficiency of the facts alleged in the
complaint to constitute a cause of action is
whether or not, admitting the facts alleged, the
court can render a valid judgment thereon in
accordance with the prayer of the complaint.
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(Danfoss, Inc v Continental Cement Corp, G.R.
No. 143788, Sep. 9, 2005).
In determining the sufficiency of stating the cause
of action, to be taken into account are only the
material allegations in the complaint; extraneous
facts and circumstances or other matters aliunde
are not considered. Nevertheless, the court may
consider in addition to the complaint the appended
annexes or documents, other pleadings of the
plaintiff, or admissions in the records. (Spouses
Zepeda v. China Banking Corp., G.R. No. 172175,
Oct. 9, 2006).
Anticipatory Breach
An anticipatory breach may occur, for example, if
the obligor manifests an unqualified and positive
refusal to perform a contract, though the
performance of the same is not yet due, and the
renunciation goes to the whole contract, it may be
treated as a complete breach, which will entitle the
injured party to bring his action at once. (Blossoms
& Co. v. Manila Gas Corporation, G.R. No. L32958, 1930)
5. SPLITTING A SINGLE CAUSE OF ACTION
AND ITS EFFECTS
Effect of Splitting Cause of Action
A party may not institute more than 1 suit for a
single 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 upon the merits in
any one is available as a ground for the dismissal
of the others on the ground of res judicata or litis
pendentia. (Secs 3 & 4, Rule 2; Sec. 12, Rule 15).
NOTE: If the first action is pending when the
second action is filed, the latter may be dismissed
based on LITIS PENDENTIA.
If a final judgment had been rendered in the first
action when the second action is filed, the latter
may be dismissed based on RES JUDICATA.
Splitting of a single cause of action violates the
policy against multiplicity of suits. (Dynamic
Builders & Construction Co. v. Presbitero, G.R.
No. 174202, Apr. 7, 2015).
REMEDIAL LAW
Test to Determine Singleness of Cause of
Action
The true rule which determines whether a party
has only a single and entire cause of action, or has
a severable demand for which he may maintain
separate suits, is whether the entire amount arises
from one and the same act or contract or the
several parts arise from distinct and different acts
or contracts. (BPI Family v. Vda. De Coscolluela,
G.R. No. 167724, Jun. 27, 2006).
When the facts clearly show that the filing of the
first ejectment case was grounded on the violation
of stipulations in the lease contract, while the filing
of the second case was based on the expiration of
the lease contract, the dismissal of the civil action
would not prosper.
To ascertain whether two suits relate to a single or
common cause of action, several tests exist:
1. Whether the same evidence would support and
sustain both the first and second causes of
action (same evidence test);
2. Whether the defenses in one case may be used
to substantiate the complaint in the other.
3. Whether the cause of action in the second case
existed at the time of the filing of the first
complaint. (Umale v. Canoga, G.R. No.
167246, Jul. 20, 2011)
Divisible Contracts
General Rule: A contract embraces only one
cause of action because it may be violated only
once even if it contains several stipulations.
(Quiogue v. Bautista, G.R. No. L-13159, Feb. 28,
1962)
Exception: A contract to do several things at
several times is divisible by its nature. This kind of
obligation authorizes successive actions and a
judgment recovered for a single breach does not
bar a suit for a subsequent breach. (Blossoms &
Co. v. Manila Gas Corporation, G.R. No. L-32958,
1930)
Exception to the exception: When a contract of
lease provides for the payment of the rent in
separate installments, each installment may be
considered an independent cause of action, but in
an action upon such a lease for the recovery of
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rent, the installments due at the time the action
was brought must be included in the complaint,
and failure to do so constitutes a bar to a
subsequent action for such overdue rent. (Larena
v. Villanueva, G.R. No. L-29155, 1928)
Prohibition Applies to Other Pleadings
It is to be noted that splitting a cause of action is
NOT allowed by the Rules of Court and such
prohibition applies not only to complaints but also
to counterclaims and cross-claims. (Mariscal v.
CA, G.R. No. 123926, 1999)
6. JOINDER AND MISJOINDER OF CAUSES
OF ACTION
Joinder of Causes of Action
Joinder of causes of action is the assertion of as
many causes of action as a party may have
against another in one pleading alone. It is not
compulsory, but merely permissive. (RIANO,
2019, p. 208; Sec. 5, Rule 2).
A party may in one pleading assert, in the
alternative or otherwise, as many causes of action
as he may have against an opposing party, subject
to the following conditions:
The party joining the causes of action shall comply
with the rules on joinder of parties, to wit:
The right to relief should arise out of the SAME
transaction or series of transactions; and
That there exists a question of law or fact common
to ALL parties;
The joinder shall not include special civil actions or
actions governed by special rules;
Where the causes of action are between the same
parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and
the venue lies therein; and
Where the claims in all the causes action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
(Sec. 5, Rule 2).
REMEDIAL LAW
(Flores v. Mallare-Philipps, G.R. No. L-66620,
Sep. 24, 1986).
However, the joinder of causes of action does
NOT include special civil actions or those actions
governed by special rules, i.e., ejectment, REM
foreclosure and partition. (Sec. 5, Rule 2).
Misjoinder of Causes of Action
There is misjoinder of causes of action when the
conditions for joinder under Section 5, Rule 2 are
not met. (Spouses Perez v. Hermano, G.R. No.
147417, Jul. 8, 2005).
When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed
from the rest of the causes of action and may
proceed separately upon motion by a party or
upon the court’s own initiative. (Rule 2, Sec. 6)
When after severance, the case falls outside the
jurisdiction of the court, the case may be
dismissed motu propio or on motion for lack of
jurisdiction. (Sec. 1, Rule 9)
If no one objects to the misjoinder, it would be tried
and decided together with the other causes of
action. (Ada v. Baylon, G.R. No. 182432, 2012).
Misjoinder of causes of action and parties do not
involve a question of jurisdiction of the court to
hear and proceed with the case. They are not even
accepted grounds for dismissal thereof. Instead,
under the Rules of Court, the misjoinder of causes
of action and parties involve an implied admission
of the court's jurisdiction. (Republic v. Herbieto,
G.R. No. 156117, May 26, 2005).
But if a party, despite the order from the court, fails
or refuses to sever the misjoined causes of action,
the complaint is dismissible under Rule 17, Sec. 3
of the Rules of Court. (RIANO, 2019, p. 212).
D. PARTIES TO CIVIL ACTION
When there are two or more defendants, or one or
more plaintiffs, the causes of action against the
defendants can only be joined if there is
compliance with the rules on joinder of parties.
Who May Be Parties
Only the following may be parties to a civil action
1. Natural persons;
2. Juridical persons; and
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3. Entities authorized by law. (Sec. 1, Rule 3).
A complaint commenced by a plaintiff not
authorized to be a party to a case can be raised as
an affirmative defense based on the ground of lack
of legal capacity to sue. (Sec. 12, Rule 8).
Juridical Persons as Parties
The following are juridical persons under the law:
1. The State and its political subdivisions;
2. Other corporations, institutions, and entities for
public interest or purpose, created by law;
and
3. Corporations, partnerships, and associations for
private interest or purpose, to which the law
grants a juridical personality separate and
distinct from its shareholders, partners, or
members. (Art. 44, Civil Code).
Who are Plaintiffs and Defendants
PLAINTIFF
DEFENDANT
Generally refers to the Does not only refer to
claiming party or more the original defending
appropriately,
the party.
original
claiming
party, and is the one
who
files
the
complaint.
The term may refer to
the claiming party, the
counter-claimant, the
cross-claimant or the
third-party plaintiff.
If a counterclaim is
filed
against
the
original plaintiff, the
latter
becomes
a
defendant and the
former, a plaintiff in the
counterclaim.
(Sec. 1, Rule 3).
Entities Authorized by Law to be Parties
One need not be a natural or juridical person to be
a party to a civil action, so long as it is authorized
by law to be such. Examples of such entities are:
1. Corporation by estoppel;
2. Partnership which failed to comply with
registration requirements;
3. Estate of a deceased person;
4. Legitimate labor organization;
5. The Roman Catholic Church;
6. Dissolved corporation prosecuting and
defending suits within 3 years from its
dissolution pursuant to its liquidation;
7. Partnership in the exercise of a profession.
(RIANO, 2019, p. 236);
When two or more persons not organized as an
entity without juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known.
(Sec. 15, Rule 3).
An unlicensed foreign corporation doing business
in the Philippines cannot sue before Philippine
courts. On the other hand, an unlicensed foreign
corporation not doing business in the Philippines
can sue before Philippine courts in cases involving
an isolated transaction. (Van Zuiden v. GTVL,
G.R. No. 147905, 2007)
Defenses When a Party Impleaded is Not
Authorized to be a Party:
1. If PLAINTIFF- raise an affirmative defense in
the answer that the plaintiff has no legal capacity
to sue. (Sec. 12, Rule 8).
Note: Under the 2019 Amendments, the plaintiff’s
lack of legal capacity to sue is no longer a ground
for a motion to dismiss (See Sec. 12, Rule 15 of
the New Rules) It is now considered an affirmative
defense (See Sec. 12, Rule 8 of the New Rules).
Rule 16 on Motions to Dismiss under the 1997
Rules has been deleted.
2. If DEFENDANT- raise an affirmative defense
that the pleading states no cause of action. (Sec.
12, Rule 8).
1. REAL PARTIES IN INTEREST;
INDISPENSABLE PARTIES;
REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT
PARTIES; ALTERNATIVE DEFENDANTS
Real Party-in-Interest
One who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the
avails of the suit. (Sec. 2, Rule 3).
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Every action must be prosecuted and defended in
the name of the real party-in-interest. (Id.).
rescinded when the creditors cannot collect the
claims due them. (Civil Code, Art. 1177)
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, Dec. 10, 2007)
Examples Involving Real Parties in Interest
1. In one case, the Court debunked the petitioners’
contention that they are not real parties-ininterest since they are not parties nor
signatories to the contract and hence should
not have been impleaded as defendants. It is
undeniable that petitioner Chan is an heir of
Ramon Chan and, together with petitioner Co,
was a successor-in-interest to the restaurant
business of the late Ramon Chan. Both
continued to operate the business after the
death of Ramon. Thus, they are real parties-ininterest in the case filed by private respondent,
notwithstanding that they are not signatories to
the Contract of Lease. (Sui Man Hui Chan v.
CA, G.R. No. 147999, Feb. 27, 2004);
2. A lawful possessor (who is not the owner) who
was disturbed of his possession can bring an
action to recover possession. (Phil. Trust
Company v. CA, G.R. No. 124658, Dec. 15,
1999);
3. Unless otherwise authorized by a special power
of attorney, an agent may not file a suit on
behalf of the principal as he is not the real
party-in-interest. (Art. 1878, Civil Code);
4. Any one of the co-owners may bring an action
for ejectment (Art. 487, Civil Code);
5. Condominium unit owners and residents thereof
affected by the oil leaks of the pipelines of the
defendant may sue as real parties-in-interest.
(West Tower Condominium, et.al., v. First Phil.
Industrial Condominium, G.R. No. 194239,
Jun. 16, 2015).
The purposes of the requirement for the real partyin-interest prosecuting or defending an action at
law are:
i. To prevent the prosecution of actions by persons
without any right, title or interest in the case;
ii. To require that the actual party entitled to legal
relief be the one to prosecute the action;
iii. To avoid a multiplicity of suits; and
iv. To discourage litigation and keep it within
certain bounds, pursuant to sound public
policy. (Stronghold Insurance Company, Inc. v.
Cuenca, G.R. No. 173297, 2013)
Determining the Real Party-in-Interest
The determination of who is the real party-ininterest requires consideration of the elements of
a cause of action. A cause of action involves the
existence of a right and a violation of such right.
Thus, the owner of the right violated stands as the
real party-in-interest as plaintiff, and the person
responsible for violation is the real party in interest
as defendant. (RIANO, 2019, p. 239).
If a suit is brought not against a real party-ininterest, a motion to dismiss (now an affirmative
defense) may be filed on the ground that the
complaint states no cause of action. (Sps. Laus v.
Optimum Security Services, Inc., G.R. No.
208343, Feb. 3, 2016).
General Rule: Only parties to a contract may sue.
Exceptions:
1. A beneficiary of a stipulation pour autrui may
demand fulfillment of the contract. (Civil Code,
Art. 1311) A beneficiary is a real party-ininterest/indispensable party.
2. Those who are not principally or subsidiarily
obligated in a contract may show the detriment
that could result from it i.e., when contracts
entered into in fraud of creditors may be
Locus Standi vs. Real Party-in-Interest
Legal standing or locus standi refers to a party's
personal and substantial interest in a case, arising
from the direct injury it has sustained or will
sustain as a result of the challenged
governmental action. (Chamber of Real Estate
and Builders' Association, Inc. v. Energy
Regulatory Commission, G.R. No. 174697, July 8,
2010).
Locus standi calls for more than just a generalized
grievance. The term "interest" means a material
interest, an interest in issue affected by the
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decree, as distinguished from mere interest in the
question involved, or a mere incidental
interest.|||(Abaya v. Ebdane, Jr., G.R. No. 167919,
Feb. 14, 2007)
Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by
parties who have been personally injured by the
operation of a law or any other government act but
by concerned citizens, taxpayers or voters who
actually sue in the public interest. (Agan, Jr. v.
Philippine International Air Terminals Co., Inc.,
G.R. No 155001, May 5, 2003).
On the other hand, a real party in interest involves
private suits, wherein he is "the party who would
be benefited or injured by the judgment, or the
'party entitled to the avails of the suit. (Kilosbayan,
Inc. v. Morato, G.R. No. 118910, July 17, 1995)
LOCUS STANDI
Refers to a party’s
personal
or
substantial interest of
a case involving a
government action.
May be relaxed when
brought by taxpayers,
citizens, voters, or
lawmakers pursuant
to public interest.
REAL PARTY-ININTEREST
Refers to a party who
stands to be benefited
or injured by the
judgment in a private
suit, or the party
entitled to the avails of
the same.
May not be relaxed,
and a suit brought by a
party not a real party in
interest is subject to
the affirmative defense
of lack of capacity to
sue (plaintiff) or failure
to state a cause of
action (defendant).
Indispensable Party
A real party-in-interest without whom NO FINAL
DETERMINATION can be had of an action. They
are those with such an interest in the controversy
that a final adjudication cannot be made, in his
absence, without injuring or affecting that interest.
(Sec. 7, Rule 3).
REMEDIAL LAW
Meanwhile, a party is not indispensable if his
interest in the controversy or subject matter is
distinct and divisible from the interest of the other
parties and will not necessarily be prejudiced by a
judgment which does complete justice to the
parties in court. (Benedicto v. Cacho, G.R. No.
179121, Nov. 9, 2015)
Effect of Absence of Indispensable Party
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. (MWSS v.
Court of Appeals, G.R. No. 126000, Oct. 7, 1998)
Failure to implead an indispensable party makes
available the affirmative defense of failure to state
a cause of action. (Sec. 12, Rule 8)
Outright dismissal is not the immediate remedy for
failure to implead an indispensable party because
under the Rules, non-joinder or misjoinder is not a
ground to dismiss, and parties may be dropped or
added at any stage upon motion of any party or on
court’s own initiative (see Sec. 11, Rule 3); only
when the order of the court to implead an
indispensable party goes unheeded may the case
be dismissed (see Sec. 3, Rule 17).
Compulsory Joinder of Indispensable Party
Parties in interest without whom no final
determination can be had of an action shall be
joined either as plaintiffs or defendants. (Sec. 7,
Rule 3).
Thus, it is mandatory to implead indispensable
parties to the suit. If it appears to the court that an
indispensable party has not been joined, it is its
duty to stop the trial and order the inclusion of such
party. The responsibility to implead rests on the
plaintiff, and the defendant has no right to compel
the plaintiff to prosecute the action against a party
if he does not wish to do so, but the latter is to
suffer the consequences of any error he might
commit in exercising his option. (Uy v. CA, GR.
157065, Jul. 11, 2006).
NOTE: While the general rule is that joinder of
parties is permissive, it becomes compulsory
when the one involved is an indispensable party.
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Examples Involving Indispensable Parties
1. In an action for the cancellation of memorandum
annotated at the back of a certificate of title, the
persons considered as indispensable include
those whose liens appear as annotations
pursuant to Section 108 of Presidential Decree
(PD) No. 1529. (Crisologo v. JEWM Agro, G.R.
No. 196894, Mar. 32014);
2. In a suit for breach of contract, the contracting
parties are indispensable parties (St. Luke’s
College of Medicine v. Sps. Perez, G.R. No.
222740, Sep. 28, 2016);
3. The registered owner of a lot whose title the
plaintiff seeks to nullify is an indispensable
party (Tumagan v. Kairuz, G.R. No. 198124,
Sep. 12, 2018);
4. In an action for partition of real property, the coheirs and persons having interest in the
property
are
indispensable
parties.
(Divinagracia v. Parilla, G.R. No. 196750, Mar.
11, 2015);
5. A transferee pendente lite is not an
indispensable party because in any event he
will be bound by the judgment against his
predecessor (Santiago Land Dev. Corp. v. CA,
GR No. 106194, Jan. 28, 1997);
6. A person whose right to the office is challenged
(quo warranto) is an indispensable party
(Galarosa v. Valencia, G.R. No. 109455, Nov.
11, 1993).
7. In a joint obligation, a joint debtor is not an
indispensable party in the suit against his codebtor/s. (Art. 1208, Civil Code).
(RIANO, 2019, pp. 250-252).
Representatives as Parties
Even where the action is allowed to be prosecuted
or defended by a representative party or someone
acting in a fiduciary capacity, the beneficiary shall
be included in the title of the case and shall be
deemed to be the real party in interest (Sec. 3,
Rule 3.)
NOTE: Impleading the beneficiary as a party is
mandatory.
The attorney-in-fact of the principal plaintiff filed
the complaint in his residence. An attorney-in-fact
is not a real party in interest. Hence, his residence
is immaterial. A real party-in-interest is the party
REMEDIAL LAW
who, by the substantive law has the right sought to
be enforced. Nowhere in Rule 3, Sec. 3 is it stated
or implied that the representative is likewise
deemed as the real party in interest. The Rule
simply states that in actions which are allowed to
be prosecuted or defended by a representative,
the beneficiary shall be deemed the real party in
interest and hence, should be included in the title
of the case. (Ang v. Ang, G.R. No. 186993, 2012)
If a complaint is filed for and on behalf of the
plaintiff [by one] who is not authorized to do so, the
complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect.
Hence, the court should dismiss the complaint on
the ground that it has no jurisdiction over the
complaint and the plaintiff (Palmiano-Salvador v.
Angeles, G.R. No. 171219, 2012)
Grandchildren-heirs will only be deemed to have a
material interest over the subject land - and the
rest of the decedent’s estate for that matter - if the
right of representation provided under Article
970, in relation to Article 982, of the Civil Code is
available to them. In this situation, representatives
will be called to the succession by the law and not
by the person represented; and the representative
does not succeed the person represented but the
one whom the person represented would have
succeeded. (Ang v. Pacunio, G.R. No. 208928,
2015)
Necessary Party
A necessary party is one who is not indispensable
but who ought to be joined as a party if complete
relief is to be accorded as to those already parties,
or for a complete determination or settlement of
the claim subject of the action; he should
nevertheless be joined whenever possible. (Sec.
8, Rule 3; Law Firm of Laguesma Magsalin
Consulta and Gastardo v. Commission on Audit,
G.R. No. 185544, 2015)
Effect of Non-Joinder of Necessary Parties
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.
(Sec. 9, Rule 3; Agro Conglomerates, Inc. v. CA,
G.R. No. 117660, Dec. 18, 2000).
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Whenever a necessary party is not joined, the
pleader shall set forth his:
1. Name, if known; and
2. Shall state why he is omitted. (Sec. 9, Rule 3).
Indigent Party
A party may be authorized to litigate as an indigent
if the court is satisfied that the party is one who has
no money or property sufficient and available for
food, shelter and basic necessities. (Sec. 21, Rule
3).
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his
person may be obtained. (Id.).
The application and the hearing to litigate as an
indigent litigant may be made ex parte. (Id.).
The failure to comply with the order for his
inclusion, without justifiable cause, shall be
deemed a waiver of the claim against the
necessary party. (Id.).
Distinction Between an Indispensable and a
Necessary Party
INDISPENSABLE
PARTY
NECESSARY PARTY
Must be joined under Should
be
joined
any and all conditions. whenever possible.
No final decree can be A final decree can be
had in case of his or had despite his or her
her absence.
absence.
Decision
rendered
without impleading the
indispensable party is
null and void.
Decision
rendered
when necessary not
impleaded is still valid,
without prejudice to
the rights of such
party.
(RIANO, 2019, p. 255).
Examples Involving Necessary Parties
1. A joint debtor in a joint obligation is merely a
necessary party because each debt is separate
and distinct from the other. However, the
creditor cannot collect the entire debt unless all
joint debtors are impleaded. (RIANO, 2019,
p.256);
2. Where the obligation of the parties is solidary,
either of the parties is indispensable, and the
other is not even a necessary party because
complete relief is available from either. (Cerezo
v. Tuazon, G.R. No. 141538, 2004)
When an application to litigate as an indigent
litigant is filed, the court shall determine if the
applicant complies with the income and property
standards prescribed in the present Section 19 of
Rule 141—that is:
1. The applicant’s gross income and that of the
applicant’s immediate family do not exceed an
amount double the monthly minimum wage
of an employee; and
2. The applicant does not own real property with a
fair market value of more than P300,000, as
stated in the current tax declaration. (Sec. 19,
Rule 141).
Further, the applicant must:
1. Execute an affidavit stating he falls within the
income and property value thresholds;
2. Such affidavit must be supported by:
a. Affidavit of a disinterested person attesting
to such fact;
b. The current tax declaration, if any, which
shall be attached to the indigent’s affidavit.
If the trial court finds that the applicant meets the
income and property requirements, the authority to
litigate as indigent litigant is automatically granted
and the grant is a matter of right. However, if the
trial court finds that one or both requirements have
not been met, then it would set a hearing to enable
the applicant to prove that the applicant has “no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family.” (Spouses Algura v. City of Naga, G.R. No.
150135, Oct. 30, 2006).
Only a natural party litigant may be regarded as
an indigent litigant. (Re : Query of Mr. Roger C.
Prioreschi, A.M. No. 09-6-9-SC, Aug. 19, 2009).
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Exemption of Indigent Party from Fees
If one is authorized to litigate as an indigent, such
authority shall include an exemption from the
payment of:
1. Docket fees;
2. Other lawful fees; and
3. Transcripts of stenographic notes which the
court may order to be furnished by him. (Sec.
21, Rule 3).
However, the amount of the docket and other
lawful fees, which the indigent was exempt from
paying, shall be lien on the judgment rendered in
the case favorable to the indigent, unless the
court otherwise provides. (Id.).
REMEDIAL LAW
2. COMPULSORY AND PERMISSIVE
JOINDER OF PARTIES
General Rule: Joinder of parties
compulsory, but merely permissive.
is
Exception: When it refers to joinder
indispensable parties. (Sec. 7, Rule 3).
not
of
Compulsory Joinder of Parties
The joinder of parties is compulsory if the parties
to be joined are indispensable parties. (Id.).
Note: See prior discussions on Compulsory
Joinder of Indispensible Parties.
Consequences of Falsity Committed by the
Indigent Litigant
Any falsity in the affidavit of the litigant or
disinterested person shall cause:
1. The dismissal of the complaint or action;
2. The striking out of the indigent litigant’s
pleading; and
This is without prejudice to any criminal liability
that may have been incurred. (Sec. 19, Rule
141).
Permissive Joinder of Parties
A permissive joinder of parties is allowed when the
following is complied with:
1. The right to relief should arise out of the SAME
transaction or series of transactions; and
2. That there exists a question of law or fact
common to ALL parties. (Sec. 6, Rule 3;
Central Bank Board of Liquidators v. Banco
Filipino Savings and Mortgage Bank, G.R. No.
173399, Feb. 21, 2017).
Alternative Defendant
Where the plaintiff cannot definitely identify who
among two or more persons should be impleaded
as a defendant, he may join all of them as
defendants in the alternative, although a right to
relief against one may be inconsistent with a right
of relief against the other. (Rule 3, Sec. 13)
Note that there must be at least two or more
plaintiffs and/or defendants to be joined. (RIANO,
2019, p. 210)
Spouses as Parties
Husband and wife shall sue or be sued jointly,
except as provided by law. (Sec. 4, Rule 3).
Under the 2019 Amendments, when the spouses
are sued jointly, summons must nevertheless be
served on each of them individually. (Sec. 11,
Rule 14).
Minors or Incompetents as Parties
A suit may be brought by OR against a minor or a
person alleged to be incompetent with the
assistance of his parents or his guardian. (Rule 3,
Sec. 5)
But the court may make such orders as may be
just to prevent any party from:
a. Being embarrassed; or
b. Put to expense in connection with any
proceedings in which he may have no interest.
(Sec. 6, Rule 3).
NOTE: Same transaction means that it pertains to
transactions connected with the same subject
matter of the suit.
Examples of Permissive Joinder of Parties
i. A is the passenger of the bus owned by B and
driven by C. Due to the negligent driving of C,
A suffered injuries. Here, A may join B and C
as defendants in a complaint for quasi-delict;
ii. D1 and D2 signed a promissory note in favor of
C for P1 million. By law, D1 and D2 are joint
debtors,
unless
otherwise
indicated.
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Nevertheless, C may join D1 and D2 as
defendants in a collection suit.
(RIANO, 2019 p.210).
3. MISJOINDER AND NON-JOINDER OF
PARTIES
Misjoinder of Parties
A party is MISJOINED when he is made a party to
the action although he should not be impleaded.
(supra at 254).
Non-Joinder of Parties
A party is NOT JOINED when he is supposed to
be joined but is not impleaded in the action. (Id.).
Effect of Misjoinder or Non-Joinder of Parties
Neither of the two is a ground for the dismissal of
an action, as parties may be dropped or added by
order of the court or on motion of any party OR on
its own initiative at any stage of the action and on
such terms as are just. (Sec. 11, Rule 3).
Only when the party fails to obey the order of
dropping or adding parties can the court order the
dismissal of the case. (Sec. 3, Rule 17).
Unwilling Co-Plaintiff
If the consent of any party who should be joined as
plaintiff cannot be obtained, he may be made a
defendant and the reason therefor shall be stated
in the complaint. (Sec. 10, Rule 3).
4. CLASS SUIT
Nature of a Class Suit
A class suit is an action where one or more may
sue for the benefit of all if the requisites for said
action are complied with. (RIANO, 2019, p. 267).
A class suit is a representative suit insofar as the
persons who institute it represent the entire class
of persons who have the same interest or who
suffered the same injury. However, unlike
representative suits, the persons instituting a class
suit are not suing merely as representatives. They
themselves are real parties in interest directly
injured by the acts or omissions complained of.
(Paje v. Casiño, G.R. No. 207257, Feb. 3, 2015).
REMEDIAL LAW
An action does not become a class suit merely
because it is designated as such in the pleadings;
it depends upon the attendant facts. (Banda v.
Ermita, G.R. No. 166620, Apr. 20, 2010).
Courts must exercise utmost caution before
allowing a class suit, which is the exception to the
requirement of joinder of all indispensable parties.
A quandary may result if the decision was
unfavorable as those who were deemed
impleaded by their self-appointed representatives
would certainly claim denial of due process.
(Manila International Airport Authority v. Rivera
Village Lessee Homeowners Association, Inc.,
G.R. No. 143870, Sep. 30, 2005).
Requisites of a Class Suit:
For a class suit to prosper, the following must
concur:
1. Subject matter of the controversy of common
or general interest to many persons;
2. Persons are so numerous that it is
impracticable to join all as parties;
3. The parties actually before the court are
sufficiently numerous and representative;
and
4. The representatives sue or defend for the
benefit of all. (Juana Complex I Homeowners
Association v. Fil-Estate Land, G.R. No.
152272, Mar. 5 2012).
Common Interest in a Class Suit
As a requisite for a class suit to prosper, common
interest in the subject matter (e.g., money, land,
chattel) of the litigation is required. It does not
pertain to the delict or wrong committed by the
defendant. (Arigo v. Swift, G.R. No. 206510, Sep.
16, 2014).
Adequacy of Representation in a Class Suit
In determining the question of fair and adequate
representation of members of a class, the court
must consider:
i. Whether the interest of the named party is
coextensive with the interest of the other
members of the class;
ii. The proportion of those that were made a party,
as it so bears, to the total membership of the
class; and
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iii. Any other factor bearing on the ability of the
named party to speak for the rest of the class.
(Banda v. Ermita, G.R. No. 166620, Apr. 20,
2010)
Examples Involving Class Suits
i. The Court upheld the institution of a class suit in
a case against a developer where its
excavation and other activities led to the
closure of a common road. The plaintiffs are
commuters and motorists who regularly use the
said road and that its permanent closure would
cause them great and irreparable injury. (Juana
Complex I Homeowners Assoc. v. Fil-Estate
Land, Inc. G.R. No. 152272);
ii. There can be no class suit in an action for
damages filed by the relatives against the
airline owner in a plane crash. There is no
common or general interest in the injuries or
death of the passengers, and separate
interests must be proven individually; (RIANO
2019, p. 269);
iii. There can be no class suit where the interests
of the plaintiffs are conflicting (Ibañes v. Roman
Catholic Church; G.R. No. L-4695, Dec. 12,
1908);
iv. There can be no class suit filed by a corporation
on behalf of its members for the recovery of
parcels of land belonging to its members (Sulo
ng Bayan, Inc. v. Araneta, G.R. No. L-31061,
Aug. 17, 1976);
v. There is no common or general interest of the
plaintiffs in a suit against a libelous article. Each
of the plaintiffs has a separate and distinct
reputation not shared with others. NT
(Newsweek, Inc. v. Intermediate Appellate
Court, G.R. No. L-63559, May 30, 1986);
vi. There is a class suit in an action filed to cancel
the timber license agreements granted by the
defendants and forthwith enjoin them from
issuing further timber license agreements.
There is a common and general interest in the
plaintiffs suing in behalf of succeeding
generations’ right to a balance and healthful
ecology, based on the concept of
intergenerational responsibility. (Oposa v.
Factoran, G.R. No. 101083, Jul. 30, 1993).
REMEDIAL LAW
5. SUITS AGAINST ENTITIES WITHOUT
JURIDICAL PERSONALITY
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known.
(Sec. 15, Rule 3).
The responsive pleading of the entity sued must
disclose the names and addresses of its members
since they are the persons ultimately liable to the
plaintiff. (Id.).
6. EFFECT OF DEATH OF PARTY LITIGANT
Effect of Death of a Party on the AttorneyClient Relationship
Juridical capacity and civil personality are
extinguished upon death of a person. (Arts. 37 &
42, Civil Code).
Attorney-client relationship is terminated upon the
client's death. A dead client has no personality and
cannot be represented by an attorney. (Borlongan
v. Buenaventura, G.R. No. 167234, Feb. 27,
2006).
Neither does the counsel become the counsel of
the heirs of the deceased, unless said heirs
engage his services. (Lawas v. Court of Appeals,
G.R. No. L-45809, Dec. 12, 1986).
Duty of Counsel Upon Death of Client
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the
duty of his counsel to:
1. Inform the court within 30 days after such death
of the fact thereof, and
2. Give the name and address of his legal
representative or representatives.
Failure of counsel to comply with this duty shall be
a ground for disciplinary action. (Sec. 16, Rule 3).
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and
the court may appoint a guardian ad litem for the
minor heirs. (Id.).
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Although the heirs may be allowed to substitute for
the deceased without requiring the appointment of
an administrator or executor, however, if within the
specified period a legal representative fails to
appear, the court may order the opposing counsel,
within a specified period, to process the
appointment of an administrator or executor who
shall immediately appear for the estate of the
deceased (San Juan v. Cruz, G.R. No. 167321,
Jul. 31, 2006)
The purpose behind this rule is the protection of
the right to due process of every party to the
litigation who may be affected by the intervening
death. The deceased litigant is herself or himself
protected as he/she continues to be properly
represented in the suit through the duly appointed
legal representative of his estate. (Sumaljag v.
Spouses Literato, G.R. No. 149787, Jun. 18,
2008).
REMEDIAL LAW
jurisdiction over the substitute. (Ferreria v. Vda. de
Gonzales, G.R. No. L-11567, Jul. 17, 1958).
When Formal Substitution is Not Necessary
The substitution is not necessary and would not be
ordered if the death would extinguish the action.
The proper course is for the court to dismiss the
case. (RIANO, 2019, pp. 259, 263).
Formal substitution of heirs is not necessary when
the heirs themselves voluntarily appeared,
participated in the case and presented evidence in
defense of deceased defendant. (Vda. de Salazar
v. CA, G.R. No. 121510, Nov. 23, 1995).
Where the deceased has no heirs, the court
shall require the appointment of an executor or
administrator; if the heir is a minor, a guardian ad
litem. (Rule 3, Sec. 16)
Non-compliance with the rule on substitution of a
deceased party renders the proceedings and
judgment of the trial court infirm, because the trial
court acquired no jurisdiction over the persons of
the legal representatives or of the heirs on whom
the trial and judgment would be binding on. (Brioso
v. Rili-Mariano, G.R. No. 132765, Jan. 31, 2003).
Examples of Claims Not Extinguished by Death
i. Recovery of real and personal property against
the estate. (RIANO, 2019, pp. 262-263);
ii. Enforcement of liens on such properties.
(RIANO, 2019, pp. 262-263);
iii. Recovery for an injury to person or property by
reason of tort or delict committed by the
deceased.
(Sec. 1, Rule 87);
iv. Actions to recover personal or real property
(Saligumba v. Palanog, G.R. No. 143365, Dec.
4, 2008);
v. An ejectment case against the deceased
defendant (Vda. de Salazar v. Court of
Appeals, G.R. No. 121510, Nov. 23, 1995);
vi. Action to recover damages arising from delict
(Sec. 4, Rule 111);
vii. Actions based on the tortious conduct of a
deceased defendant (Melgar v. Buenviaje,
G.R. No. L-55750, Nov. 8, 1989).
viii. Action for collection against the deceased
defendant based on contractual claims (Sec.
20, Rule 3).
It is not the amendment of the pleading but the
substitution of his legal representatives or heirs
that is required. Service of summons upon the
heirs or representatives is also not required. It is
the order of the court that enables it to acquire
Action on Contractual Money Claims – Plaintiff
Dies
Plaintiff’s heirs or legal representatives will be
substituted for him and case will proceed. (Sec.
16, Rule 3)
Effect of Non-Substitution
The court may order the opposing party, within a
specified time, to procure the appointment of an
executor or administrator for the estate of the
deceased in cases when:
a. If no legal representative is named by the
counsel for the deceased party; or
b. If the legal representative so named shall fail to
appear within the specified period. (Sec. 16,
Rule 3).
The court charges in procuring such appointment,
if defrayed by the opposing party, may be
recovered as costs. (Id.).
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Action on Contractual Money Claims –
Defendant Dies Before Entry of Final Judgment
The case shall not be dismissed but shall be
allowed to continue until entry of final judgment.
(Sec. 20, Rule 3).
The judgment favorable to the plaintiff shall be filed
as a money claim against the estate. (Id.).
NOTE: The action may arise from an implied
contract (Id.).
Action on Contractual Money Claims –
Defendant Dies After Entry of Final Judgment
If the judgment obligor (defendant) dies, but before
levy or execution, the judgment may be enforced
against his executor or administrator or
successors in interest filed as a claim against the
estate. (Sec. 7 (b), Rule 39).
But if the judgment obligor dies after the judgment
has been enforced or his property has already
been levied, such property may actually be sold for
the satisfaction of the judgment obligation. (Sec. 7
(c), Rule 39).
Death or Separation of Party Who is a Public
Officer
When a public officer is a party in an action, in his
official capacity and during its pendency, dies,
resigns, or otherwise ceases to hold office, the
action may be continued and maintained by or
against his successor provided that:
1. Satisfactory proof by any party that there is
substantial need for continuing or maintaining
the action;
2. The successor adopts or continues or threatens
to adopt or continue the acts of his or her
predecessor;
3. The substitution must be effected within 30 days
after the successor assumes office or within the
time granted by the court; and,
4. Notice of the application to the other party. (Sec.
17, Rule 3, Rufus v. Jardine, G.R. No.141834,
Jul. 30, 2007).
b. Such other designation as the case may require.
When his identity or true name is discovered, the
pleading must be amended accordingly. (Sec. 14,
Rule 3).
Party Becoming Incompetent or Incapacitated
If a party becomes incompetent or incapacitated,
the court, upon motion with notice, may allow the
action to be continued by or against the
incompetent or incapacitated person assisted by
his legal guardian or guardian ad litem. (Sec.
18, Rule 3).
Notice to the Solicitor General
The court, in its discretion, may require the
appearance of the Solicitor General in any action
involving the validity of:
i. Treaty;
ii. Law;
iii. Ordinance;
iv. Executive order;
v, Presidential decree; or
vi. Rules or regulations.
The Solicitor General may be heard in person or
through a representative duly designated by
him. (Sec. 22, Rule 3).
E. VENUE
Definition of Venue
Venue is the place where the case is to be heard
or tried. (Nocum v. Tan, G.R. No. 145022, Sept.
23, 2005).
1. VENUE OF REAL ACTIONS
The venue for real actions shall be in the proper
court which has jurisdiction over the area wherein
the real property involved, or a portion thereof, is
situated. (Sec. 1, Rule 4).
Forcible entry and detainer actions shall be
commenced and tried in the municipal trial court of
the municipality or city wherein the real property
involved, or a portion thereof, is situated. (Id.).
Unknown Identity or Name of Defendant
Whenever the identity or name of a defendant is
unknown, he may be sued as:
a. The unknown owner, heir, devisee; or
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2. VENUE OF PERSONAL ACTIONS
The venue for personal actions shall be, at the
election of the plaintiff:
a. Where the plaintiff or any of the principal
plaintiffs resides;
b. Where the defendant or any of the principal
defendants resides; or
c. In the case of a non-resident defendant, where
he may be found. (Sec. 2, Rule 4).
Based on the allegations of the complaint, if the
respondent seeks the nullification of promissory
notes, continuing surety agreements, checks and
mortgage agreements for being executed against
their will and vitiated by irregularities, not the
recovery of the possession or title to the properties
burdened by the mortgages, then the action is
personal in nature and not real, therefore, the
proper venue would be governed by Rule 4
Section 2(b) of the Rules of Court. (BPI v
Hontanosas, G.R. No. 157163, Jun. 25, 2014).
Meaning of Residence
Residence means physical or actual habitation or
actual residence or place of abode, (Fule v. CA,
G.R. No. L-40502, 1976) whether permanent or
temporary as long as he resides with continuity
and consistency therein. (Dangwa Transportation
Co v. Sarmiento, G.R. No. L-22795, 1977)
When there is more than one plaintiff in a personal
action case, the residences of the principal
parties should be the basis for determining
proper venue. Otherwise, the purpose of the Rule
would be defeated since a nominal or formal party
is impleaded in the action since the latter would not
have the degree of interest in the subject of the
action which would warrant and entail the
desirably active participation expected of litigants
in a case. (Marcos-Araneta v. CA, G.R. No.
154096, Aug. 22, 2008)
3. VENUE OF ACTIONS AGAINST NONRESIDENTS
If the Action Involves the Personal Status of
the Plaintiff or Property of Defendant
If the action involves the personal status of the
plaintiff, or any property of said defendant
located in the Philippines and the defendant does
REMEDIAL LAW
NOT reside or is NOT found in the Philippines, the
venue of the action may be the court:
a. Where the plaintiff resides, if the case affects
the status of the latter; or
b. Where the property or portion thereof is
situated, if the case involves the property of the
defendant. (Sec. 3, Rule 4).
If Defendant Does Not Reside But is Found in
the Philippines
When it is a personal action, the action may be
commenced and tried in the court of the place
where the plaintiff resides or where the
defendant may be found, e.g., if the defendant is
a U.S. resident, but is on vacation in Makati,
summons may be served on defendant in Makati.
(Sec. 2, Rule 4).
If there are several defendants, but one of them is
a resident, or a nonresident but can be found in
the Philippines, the action may be commenced
where the plaintiff resides or where the resident
defendant resides or where the nonresident
defendant may be found. (Id.).
4. WHEN THE RULES ON VENUE DO NOT
APPLY
The rules on venue are not applicable in any of the
following cases:
a. Where a specific rule or law provides otherwise;
or
b. Where the parties have validly agreed in writing
before the filing of the action on the exclusive
venue thereof. (Sec. 4, Rule 4).
First Exception: When a Specific Rule or Law
Provides Otherwise
Venue for Derivative Suits
As regards the venue of derivative suits, Section
5, Rule 1 of A.M. No. 01-2-04-SC states: all
actions covered by these Rules shall be
commenced and tried in the Regional Trial Court,
which has jurisdiction over the principal office
of the corporation, partnership, or association
concerned.
Where the principal office of the corporation,
partnership or association is registered in the
Securities and Exchange Commission as
Metro Manila, the action must be filed in the city
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or municipality where the head office is located.
(Hi-Yield Realty, Inc. v. CA, G.R. No. 168863,
2009).
Venue for Revival of Judgment
The proper venue in an action for revival of
judgment depends on the determination of
whether the present action for revival of judgment
is a real or personal action. The allegations in the
complaint for revival of judgment determine
whether it is a real action or a personal action.
(Infante v. Aran Builders, G.R. No. 156596 Aug.
24, 2007).
Venue for Petition of Declaration of Nullity and
Annulment of Voidable Marriage
The petition shall be filed in the Family Court of the
province or city where:
a. The petitioner or the respondent has been
residing for at least 6 months prior to the date
of filing; or
b. In case of nonresident respondent, where he
may be found in the Philippines, at the election
of the petitioner; or
c. In stations where no branches of the Regional
Trial Court are designated as Family Courts,
the cases falling within the jurisdiction of the
Family Courts shall be raffled among the
branches of the Regional Trial Court with the
same station which shall try and decide such
cases according to the existing issuances.
(Sec. 4, A.M. No. 02-11-10-SC, Re: Rule on
Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages, as amended).
Venue for Adoption
The petition for adoption shall be filed with the
Family Court of the province or city where the
prospective adoptive parents reside. (Sec. 6, A.M.
No. 02-6-02-SC, Rule on Adoption).
Venue for Probate of Wills
If the decedent died in the Philippines: Where the
deceased last resided at his time of death. (Sec.
1, Rule 73).
If the decedent died abroad: in any of the
provinces where he has property. (Id.).
REMEDIAL LAW
Second Exception: When the Parties Agree to
an Exclusive Venue
The parties may stipulate on the venue as long as
the agreement to that effect is:
1. In writing;
2. Made before the filing of the action; and
3. Exclusive as to the venue. (Sec. 4(b), Rule 4;
RIANO, 2019, p. 172).
5. EFFECTS OF STIPULATIONS ON VENUE
Restrictive
and
Permissive
Written
Stipulations
Written stipulations as to venue are either
mandatory (restrictive) or permissive. In
interpreting stipulations, inquiry must be made as
to whether or not the agreement is restrictive in the
sense that the suit may be filed only in the place
agreed upon or merely permissive in that the
parties may file their suits not only in the place
agreed upon but also in the places fixed by the
rules. (Supena v. Dela Rosa, A.M. No. RTJ-931031, Jan. 28, 1997).
The mere stipulation on the venue of an action is
not enough to preclude parties from bringing a
case in other venues.
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. (Sps. Lantin v. Lantion, G.R. No.
160053, Aug. 28, 2006)
Examples of Restrictive Words
Examples
of
qualifying
or
restrictive
words: "exclusively" and "waiving for this
purpose any other venue," "shall only"
preceding the designation of venue, "to the
exclusion of the other courts," or words of similar
import. (Auction in Malinta, Inc. v. Luyaben, G.R.
No. 173979, Feb. 12, 2007).
Stipulations of Venue Apply Only When the
Cause of Action is Breach of Contract
Exclusive venue stipulation embodied in a contract
restricts or confines parties thereto ONLY when
the suit relates to breach of said contract. Since
the other causes of action in petitioner’s complaint
do not relate to the breach of the agreement it
forged embodying the exclusive venue stipulation,
they should not be subject to the exclusive venue.
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The stipulation should be strictly confined to the
specific undertaking or agreement. (Uniwide v.
Cruz, G.R. No. 171456, Aug. 9, 2007).
If the complaint was assailing the validity of the
written instrument itself, the parties should not be
bound by the exclusive venue stipulation
contained therein and should be filed in
accordance with the general rules on venue. It
would be inherently inconsistent 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. Court of Appeals, G.R.
No. 204444, Jan. 14, 2015)
A restrictive stipulation on the venue of actions
contained in a promissory note applies to the
surety agreement supporting it, because the
nature of the two contracts and the factual
circumstances surrounding their execution are
intertwined or interconnected. The surety
agreement is merely an accessory to the principal
loan agreement embodied in the promissory note.
Hence, the enforcement of the former depends
upon the latter. (PBCOM v. Lim, G.R. No. 158138,
Apr. 12, 2005)
The exclusive venue, as stipulated by the parties
and sanctioned by Rule 4 of the Rules of Court,
cannot be made to apply to the Petition for
Extrajudicial Foreclosure because the provisions
of Rule 4 pertain to venue of actions, which an
extrajudicial foreclosure is not. Rule 2 of the Rules
of Court defines an action as means an ordinary
suit in a court of justice, by which one party
prosecutes another for the enforcement or
protection of a right, or the prevention or redress
of a wrong. (Ochoa v. Chinabank, G.R. No.
192877, Mar. 23, 2011).
Waiver of Venue
The ground of improperly laid venue must be
raised seasonably, else it is deemed waived.
Where the defendant failed to either file a motion
to dismiss on the ground of improper venue or
include the same as an affirmative defense, he is
deemed to have waived his right to object to
improper venue. Here, petitioners raised at the
earliest time possible, meaning “within the time for
but before filing the answer to the complaint,” the
matter of improper venue. (Marcos-Araneta v.
Court of Appeals, G.R. No. 154096, Aug. 22,
2008).
Note: Under the 2019 Amendments, the ground of
improper venue is now an affirmative defense.
(Sec. 12, Rule 8).
F. PLEADINGS
1. KINDS OF PLEADINGS AND WHEN
SHOULD THEY BE FILED
Pleadings, defined
The written statements of the respective claims
and defenses of the parties submitted to the court
for appropriate judgment (Rule 6, Sec. 1)
Nature and purpose
Pleadings are designed to develop and present
the precise points in dispute between the parties.
Their office is to inform the court and the parties of
the facts in issue. (RIANO, 2019, p. 274).
Pleading vs. Motion
A motion is an application for relief other than by a
pleading. (Rule 15, Sec. 1)
The rules that apply to pleadings shall also apply
to written motions so far as concerns caption,
designation, signature, and other matters of form.
(Rule 15, Sec. 11)
PLEADING
MOTION
A submission of claims An application for an
or
defenses
for order not included in
appropriate judgment. the judgment.
May be initiatory or not. Cannot be initiatory as
motions are made in a
case already filed in
court.
Must be written.
May be oral when
made in open court or
in the course of a
hearing or a trial.
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Must be filed before May be filed
judgment.
judgment.
after
PLEADINGS ALLOWED BY THE RULES OF
COURT:
1. Complaint;
2. Answer;
3. Counterclaim;
4. Cross-claim;
5. Third (fourth, etc. – party complaint);
6. Complaint-in-intervention; and
7. Reply. (Rule 6, Sec. 2)
a. Complaint
The complaint is the pleading alleging the
plaintiff’s or claiming party’s cause or causes of
action. The names and residences of the plaintiff
and defendant must be stated in the complaint.
(Rule 6, Sec. 3)
b. Answer
An answer is a pleading in which a defending party
sets forth his defenses. (Sec. 6, Rule 4) It may be
an answer to a complaint, a counterclaim or a
cross-claim but not to a reply. Since it responds to
a claim, an answer is called a responsive pleading.
(RIANO, 2019, p. 323).
i. Negative Defenses
Negative defenses refer to the specific denial of
the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of
action. (Rule 6 Sec. 5(a))
ii. Negative Pregnant
It is a denial pregnant with the admission of the
substantial facts in the pleading responded to
which are not squarely denied. It was, in effect, an
admission of the averments it was directed
at. (Marcos, Jr. v. PCGG, G.R. No. 189434, April
25, 2012)
A negative pregnant is a form of negative
expression which carries with it an affirmation or at
least an implication of some kind favorable to the
adverse party. It is a denial pregnant with an
admission of the substantial facts alleged in the
pleading. (Valdez v. Dabon, Jr., A.C. No. 7353,
November 16, 2015).
Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so
qualified or modified are literally denied, it has
been held that the qualifying circumstances alone
are denied while the fact itself is admitted.
(Serrano Mahilum v. Spouses Ilano, G.R. No.
197923, June 22, 2015)
Example of a Negative Pregnant
A complaint, in par. 4, alleged that the plaintiff was
unable to take actual possession of the property
because of the “unwarranted adverse claim of
rights of ownership and possession by the
defendant, alleging sale by a certain Fe of said
property to defendant, which if true, had no right
whatsoever to legally dispose the abovedescribed property not being the owner
thereof.” In response, the answer of the defendant
stated: “The defendant denies the material
averments contained in par. 4, the truth being, that
the defendant never asserted title of ownership to
the property described in the complaint to
anybody, much less to the herein plaintiff in virtue
of any deed of conveyance executed in favor of the
defendant by one Fe, nor claimed any possessory
right over the said property, either by himself or
through another.
The Court held that there was a negative pregnant
in the defendant’s reply, which is to be construed
as an implied admission. Particularly, when the
plaintiff alleged that his inability to take actual
possession of the parcel of land due to "an
unwarranted adverse claim of rights of ownership
and possession by the defendant," followed by an
allegation of how such claim was exercised, the
defendant’s denial is as to "the material averments
contained in par. 4 of the Complaint," conjoined
with his disclaimer of dominical or possessory
rights in the manner alleged in the complaint. It
thus appeared that he denied the averments in
par. 4, but he did not deny the fact of ownership
and right to possession of the plaintiff. (Galofa v.
Nee Bon Sing, G.R. No. L-22018, 1968).
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c. COUNTERCLAIMS
Counterclaims, Defined
A counterclaim is any claim, which a defending
party may have against an opposing party. (Rule
6, Sec. 6)
A counterclaim is in itself a distinct and
independent cause of action and when filed, there
are two simultaneous actions between the same
parties. (Padilla v. Globe Asiatique Realty
Holdings Corporation, G.R. No. 207376, August 6,
2014).
When a defendant files a counterclaim against the
plaintiff, he becomes the plaintiff in the
counterclaim and the original plaintiff becomes the
defendant. (RIANO, 2019, p. 346).
i. Compulsory Counterclaim
REMEDIAL LAW
Despite the lack of jurisdiction of the court to
adjudicate on the counterclaim, the same may
nevertheless be pleaded in the same action, not to
obtain affirmative relief because the court, for want
of jurisdiction cannot do so. The purpose would
merely be as a defense to weaken the plaintiff’s
claim. (Maceda v. Court of Appeals, G.R. No.
83545, 1989).
Incompatibility Between a Compulsory
Counterclaim and a Motion to Dismiss
A compulsory counterclaim is auxiliary to the
proceeding in the original suit and derives its
jurisdictional support therefrom. A counterclaim
presupposes the existence of a claim against the
party filing the counterclaim. Hence, where there
is no claim against the counterclaimant, the
counterclaim is improper and it must be dismissed.
(Financial Building Corporation v. Forbes Park
Association, G.R. No. 133119, August 17, 2000).
Elements of a Compulsory Counterclaim
1. Arises out of or is necessarily connected with
the transaction or occurrence which is the
subject matter of the opposing party’s claim;
2. It does not require for its adjudication the
presence of third parties over whom the court
cannot acquire jurisdiction;
3. The court has jurisdiction over the amount and
nature of the case; and
4. It must be cognizable by the regular courts of
justice. (Rule 6, Sec. 7, see Alba v. Malapajo,
G.R. No. 198752, January 13, 2016).
A party who desires to plead a compulsory
counterclaim should NOT file a motion to
dismiss. If he files a motion to dismiss and the
complaint is dismissed, then there will be no
chance to invoke the counterclaim. The better
move is to file an answer with a counterclaim.
(RIANO, 2019, p. 351).
Test to Determine Whether a Counterclaim is
Compulsory or Permissive
i. Are the issues of fact or law raised by the claim
and the counterclaim largely the same?
ii. Would res judicata bar a subsequent suit on
defendant’s claim absent the compulsory
counterclaim rule?
iii. Will substantially the same evidence support or
refute plaintiff’s claim as well as the
defendant’s counterclaim? And
iv. Is there any logical relation between the claim
and the counterclaim? Affirmative answers to
the above queries indicate the existence of a
compulsory counterclaim. (Financial Building v.
FPA, G.R. No. 133119, 2000).
General Rule: A compulsory counterclaim that a
defending party has at the time he or she files his
or her answer shall be contained therein. (Sec. 8,
Rule 11; Sec. 2, Rule 9). A compulsory
counterclaim not initially set up in the same action
is barred. (Sec. 7, Rule 6).
Rule on Barring of Compulsory Counterclaims
A compulsory counterclaim that a defending party
has at the time he or she files his or her answer
shall be contained therein. (Sec. 8, Rule 11)
If it is filed concurrently with the main action but in
a different proceeding, it would be abated on the
ground of litis pendentia; if filed subsequently, it
would meet the same fate on the ground of res
judicata. (Alba, Jr. v. Malapajo, G.R. No. 198752,
Jan. 13, 2016).
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Exceptions:
a. A counterclaim which either matured or was
acquired by a party after serving his or her
pleading may, with permission of the court, be
presented as a counterclaim by supplemental
pleading before judgment (Sec. 9, Rule 11); or
b. When a pleader fails to set up the counterclaim
through oversight, inadvertence, or excusable
negligence, or when justice requires, he or she
may set up the counterclaim by amendment
before judgment. (Sec. 10, Rule 11).
Difference between Counterclaims filed in the
Municipal Trial Court / Metropolitan Trial Court
and in the Regional Trial Court:
A counterclaim filed in the Municipal Trial Court or
in the Metropolitan Trial Court must be within the
court’s jurisdiction both as to the nature and to the
amount of the claim. (Sec. 7, Rule 6).
A counterclaim filed in the RTC may be deemed
compulsory regardless of the amount, but it must
be within its jurisdiction as to nature – i.e., the RTC
cannot try an unlawful detainer case as a
counterclaim, but it may take cognizance of a
counterclaim involving an amount below its
jurisdictional threshold. (Sec. 7, Rule 6).
ii. Permissive Counterclaim
Nature of Permissive Counterclaim
A counterclaim is permissive if any of the elements
of a compulsory counterclaim is absent (see prior
discussion on Elements of Compulsory
Counterclaim; see also Sec. 7, Rule 6).
The most commonly treated feature of a
permissive counterclaim is its absence of a logical
connection with the subject matter of the
complaint. (International Container Terminal
Services Inc. v. CA, G.R. No. 90530, 1992).
A permissive counterclaim does not necessarily
arise out of or is not directly connected with the
subject matter of the first claim; it can be filed as a
separate case altogether. There is a need to pay
for docket fees since it is seen as a different action
altogether with defendants becoming ‘plaintiffs’ in
respect of such counterclaim. (Reillo v. San Jose,
G.R. No. 166393, 2009)
If the compulsory counterclaim is by reason of an
unfounded suit, then it may prosper even if the
main complaint is dismissed. The cause of action
of the counterclaimant is not eliminated by the
mere dismissal of the main complaint. (Padilla v.
Globe Asiatique, G.R. No. 207376, 2014)
Compulsory vs. Permissive Counterclaim
COMPULSORY
PERMISSIVE
COUNTERCLAIM
COUNTERCLAIM
It arises out of or is It does not arise out of
necessarily connected or is it necessarily
with the transaction or connected with the
occurrence that is the subject matter of the
subject matter of the opposing
party’s
opposing
party’s claim.
claim.
It shall be contained in It may be set up as an
the answer. If not set independent
action
up it shall be barred.
and will not be barred
if not contained in the
answer
to
the
complaint.
It is not an initiatory It is an initiatory
pleading.
pleading.
Does not
require Should
be
certification of forum accompanied by a
shopping.
certification
against
forum shopping and
whenever required by
law, a certificate to file
action
issued
by
Lupong
Tagapamayapa.
A
compulsory It must be answered
counterclaim
that by the party against
merely
reiterates whom it is interposed
special defenses are otherwise, he may be
deemed controverted declared in default as
even without a reply.
to the counterclaim.
Issues raised in a
counterclaim
are
deemed automatically
joined
by
the
allegations of the
complaint, which need
not be answered.
The answer must be
made within ten (10)
days from service.
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COMPULSORY
COUNTERCLAIM
No requirement for the
presence of
third
parties whom the
court cannot acquire
jurisdiction over for its
adjudication.
Does not require the
payment of docket
fees
Failure to answer is
not a ground to be
declared in default.
PERMISSIVE
COUNTERCLAIM
May require for its
adjudication
the
presence of
third
parties over whom the
court cannot acquire
jurisdiction.
Requires the payment
of docket fees.
Must be answered by
the party
against
whom it is interposed.
Otherwise, the party
may be declared in
default.
If not raised in the Failure to set it up in
same action, it shall the same action does
be barred.
not bar its filing.
(RIANO, 2019, p. 353 – 356).
iii. Effect On The Counterclaim When The
Complaint Is Dismissed
Three Situations Involving the Effect of a
Dismissal of a Complaint on the Counterclaim
Already Set Up
1. When the defendant files an answer raising
therein an affirmative defense, as well as a
counterclaim, and upon hearing of the affirmative
defenses, the court dismisses the case – Under
Rule 16, Sec. 6 of the 1997 Rules on Civil
Procedure, the dismissal of the complaint shall be
without prejudice to the prosecution of the
counterclaim in the same or a separate action.
2. When the plaintiff himself files a motion to
dismiss his complaint after the defendant has
pleaded his answer with a counterclaim, and the
court grants the motion - Again, the dismissal shall
be without prejudice to the right of the defendant
to prosecute his counterclaim in a separate action
unless within 15 days from notice of the motion he
manifests his preference to have his counterclaim
resolved in the same action. (Sec. 2, Rule 17).
3. When complaint is dismissed through the
plaintiff’s fault and at a time when a counterclaim
has already been set up - The dismissal is without
prejudice to the right of the defendant to prosecute
REMEDIAL LAW
his counterclaim in the same or separate action.
(Sec. 3, Rule 17).
The counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim,
because the Rules make no distinction. (RIANO,
2019, p. 461).
d. Cross-claims
Nature of Cross-claims
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. (Sec. 8, Rule 6).
A cross-claim that a party has at the time the
answer is filed shall be contained in the answer.
(Sec.8, Rule 11).
Requirements:
1. A claim by one party against a co-party;
2. Must arise out of the transaction or occurrence
that is the subject matter either of the original
action or of a counterclaim; and
3. The cross-claimant is prejudiced by the claim
against him by the opposing party.
Effect of Failure to Set Up Cross-Claim
General Rule: a cross-claim which is not set up in
the action is barred. (Sec. 2, Rule 9).
Exceptions:
a. A cross-claim which either matured or was
acquired by a party after serving his or her
pleading may, with permission of the court, be
presented as a cross-claim by supplemental
pleading before judgment (Sec. 9, Rule 11);
or
b. When a pleader fails to set up the cross-claim
through oversight, inadvertence, or excusable
negligence, he or she may set up the crossclaim by amendment before judgment. (Sec.
10, Rule 11).
c. When it is outside the jurisdiction of the court;
d. If the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim. In which case,
the cross-claim is considered PERMISSIVE;
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e. Cross claim that may mature or may be
acquired after service of the answer.
fendant. (Sy Tiong Shiou v. Sy Chim, G.R. Nos.
174168 & 179438, Mar. 30, 2009)
A cross-claim cannot be set up for the first time on
appeal. (Loadmasters Customs Services v. Glodel
Brokerage Corp., G.R. No. 179446, 2011)
Requisites for a Third-party Action
1. The party to be impleaded must not yet be a
party to the action;
2. The claim against the third-party defendant
must belong to the original defendant;
3. The claim of the original defendant against the
third-party defendant must be based upon the
plaintiffs claim against the original defendant;
and
4. The defendant is attempting to transfer to the
third-party defendant the liability asserted
against him by the original plaintiff. (Philtranco
Services v. Paras, G.R. No. 161909, 25 April
2012).
The dismissal of the complaint carries with it the
dismissal of a cross-claim which is purely
defensive, but not a cross-claim seeking an
affirmative relief. (Torres v. CA, G.R. No. L-25889,
1973)
Counter-counterclaims and Counter-crossclaims
A counter-counter claim is filed when there is a
claim against the original counter-claimant. A
counter-cross-claim is filed against an original
cross-claimant. (Rule 6, Sec. 9)
e. Third, (Fourth, etc.) Party Complaint
Nature of Third-party Complaint
A claim that a defending party may, with leave of
court, file against a person not a party to the
action, in respect of his opponent’s claim, for:
a. Contribution;
b. Indemnity;
c. Subrogation; or
d. Any other relief. (Sec. 11, Rule 6)
The Rules permit defendant to bring in a third party
defendant or so to speak, to litigate his separate
cause of action in respect of plaintiff's claim
against a third party in the original and principal
case with the object of avoiding circuitry of action
and unnecessary proliferation of lawsuits and of
disposing expeditiously in one litigation the entire
subject matter arising from one particular set of
facts. (Development Bank of the Philippines v.
Clarges Realty Corp., G.R. No. 170060, 2016)
The defendant may implead another as thirdparty defendant:
a. On an allegation of liability of the third-party
defendant to the defendant for contribution,
indemnity, subrogation or any other relief;
b. On the ground of direct liability of the thirdparty defendant to the plaintiff; or
c. The liability of the thirdparty defendant to both the plaintiff and the de
A prerequisite to the exercise of such right is that
some substantive basis for a third-party claim be
found to exist, whether the basis be one of
indemnity, subrogation, contribution or other
substantive right. There must be a causal
connection between the claim of the plaintiff in his
complaint and a claim for contribution, indemnity
or other relief of the defendant against the thirdparty defendant. (Asian Construction & Dev’t Corp
v. CA, G.R. No. 160242, 2005)
Denial of Admission of Third-party Complaint
Under Rule 6, Sec. 11 of the 2019 Amendments,
the third-party complaint shall be denied
admission, and the court shall require the
defendant to institute a separate action, where:
a. The third-party defendant cannot be located
within 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 would be to introduce a new and
separate controversy into the action.
Causal Connection Between Third-party
Complaint and Plaintiff’s Complaint
There must be a causal connection between the
claim of the plaintiff in his complaint and a claim for
contribution, indemnity or other relief of the
defendant against the third-party defendant.
(Asian Construction & Dev’t Corp v. CA, G.R. No.
160242, 2005).
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To check whether there is a causal connection, the
Court made out the following tests:
1. Whether it arises out of the same transaction on
which the plaintiff’s claim is based, or although
arising out of another or different transaction, is
connected with the plaintiff’s claim;
2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for all
or part of the plaintiff’s claim against the original
defendant; and
3. Whether the third-party defendant may assert
any defenses that the third-party plaintiff has or
may have to plaintiff’s claim. (Id.).
Jurisdiction Over Third-party Defendant
Summons on third, fourth etc.-party defendant
must be served for the court to obtain jurisdiction
over his person, since he is not an original party.
(FERIA, 2013 Vol. 1, p. 333)
Since the trial court had acquired jurisdiction over
the complaint, it necessarily follows that it likewise
had jurisdiction over the third-party complaint
which is but an incident thereof. This must be so
because jurisdiction over the main case embraces
all incidental matters arising therefrom and
connected therewith. (Republic v. Central Surety &
Insurance Co., G.R. No. L-27802, October 26,
1968)
Effect of Dismissal and Appeal of Complaint on
Third-party Complaint
If the complaint is dismissed, the third-party
complaint will also necessarily be dismissed. If the
plaintiff appeals, the third-party plaintiff should also
appeal so that judgment could be rendered against
third-party defendant. In this jurisdiction, the rule is
pretty well-settled that a party who does not appeal
from the decision may not obtain any affirmative
relief from the appellate court other than what he
has obtained from the lower court, if any, whose
decision is brought up on appeal. (FERIA, 2013
Vol. 1, p. 337, citing Go v. Court of Appeals, G.R.
No. L-25393, October 30, 1980)
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. (Sec. 12, Rule 6)
Bringing New Parties vs. Third-party
Complaint
BRINGING NEW
THIRD-PARTY
PARTIES
COMPLAINT
Other
necessary The
third-party
parties are brought in defendants are NOT
when one or more of one of the parties to
the defendants in a the main action.
counterclaim or crossclaim is ALREADY a
party to the action.
(FERIA, 2013 Vol. 1, p. 338)
Cross-claim vs.
Complaint
CROSS
CLAIM
Against a coparty
No need for
leave
of
court.
Must arise out
of
the
transaction
that is the
subject
matter of the
original action
or
of
a
counterclaim
therein.
Counterclaim vs. Third-party
COUNTERCLAIM
Against
an
opposing
party.
No need for
leave
of
court.
May arise out
of
or
be
necessarily
connected
with
the
transaction or
that is the
subject
matter of the
opposing
party’s claim
in which case,
it is called a
compulsory
counterclaim,
or it may not,
in which case
it is called a
permissive
counterclaim.
3RD PARTY
COMPLAINT
Against
a
person not a
party to the
action.
Leave
of
court
is
required.
Must be in
respect of the
opponent’s
(plaintiff)
claim.
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f. Complaint-In-Intervention
Nature of Intervention
Intervention is a remedy by which a third party,
who is not originally impleaded in a proceeding,
becomes a litigant for purposes of protecting his or
her right or interest that may be affected by the
proceedings. (Neptune Metal Scrap Recycling,
Inc. v. Manila Electric Co., G.R. No. 204222, July
4, 2016)
If the purpose of the motion for intervention is to
assert a claim against either or all of the original
parties, the pleading shall be called a
COMPLAINT-IN-INTERVENTION. Meanwhile, if
the purpose is to unite with the defending party in
resisting a claim against the latter, the pleading is
called an ANSWER-IN-INTERVENTION. (Rule
19, Sec. 3)
Intervention is not an absolute right but may be
granted by the court when the movant shows facts
which satisfy the requirements of the statute
authorizing intervention. (Executive Secretary v.
Northeast Freight Forwarders, Inc., G.R. No.
179516, March 17, 2009)
The allowance or disallowance of a motion to
intervene is within the sound discretion of the
court. (Heirs of Restrivera v. De Guzman, G.R. No.
146540, July 14, 2004).
Requisites for Intervention
The intervention shall be allowed when:
1. A person has legal interest:
a. In the matter in litigation;
b. In the success of any of the parties;
c. An interest against the parties; or
d. He is so situated as to be adversely affected
by a distribution or disposition of property in
the custody of the court or an officer thereof.
(Rule 19, Sec. 1, Mactan-Cebu International
Airport Authority v. Heirs of Miñoza, G.R.
No. 186045, Feb. 2, 2011)
2. The intervention will not unduly delay or
prejudice the adjudication of the rights of the
original parties; and
3. The intervenor’s rights may not be fully
protected in a separate proceeding.
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(Asia's Emerging Dragon Corp. v. Department of
Transportation and Communications, G.R.
Nos. 169914 Mar. 24, 2008).
Meaning of Legal Interest
The interest contemplated by law must be actual,
substantial, material, direct and immediate, and
not simply contingent or expectant. It must be of
such direct and immediate character that the
intervenor will either gain or lose by the direct legal
operation and effect of the judgment. (Asia's
Emerging Dragon Corp. v. Department of
Transportation and Communications, G.R. Nos.
169914 & 174166, Mar. 24, 2008)
Procedure for Intervention
1. The motion for intervention must be filed before
judgment (Rule 19, Sec. 2);
2. A copy of the pleading-in-intervention shall be
attached to the motion and served on the
original parties. (Rule 19, Sec. 2).
3. The answer to the complaint-in-intervention
shall be filed within 15 calendar days from the
notice of the order admitting the complaint-inintervention, unless otherwise fixed by the
court. (Rule 19, Sec. 4).
Effect of Dismissal of the Original Action on
the Complaint-in-intervention
It has been held that the simple fact that the trial
court properly dismissed plaintiff’s action does not
require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the
original suit and to prosecute it to judgment. The
right cannot be defeated by dismissal of the suit by
the plaintiff after the filing of the petition and notice
thereof to the other parties. A person who has an
interest in the subject matter of the action has the
right, on his own motion, to intervene and become
a party to the suit, and even after the complaint
has been dismissed, may proceed to have any
actual controversy established by the pleadings
determined in such action. The trial court's
dismissal of plaintiff's action does not require
dismissal of the action of the intervenor.
(Metropolitan Bank and Trust Co. v. Presiding
Judge, RTC Manila, Br. 39, G.R. No. 89909,
September 21, 1990)
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Client May Settle Even if Attorney Does Not
Intervene in the Case
A client has an undoubted right to settle her
litigation without the intervention of the attorney,
for the former is generally conceded to have
exclusive control over the subject matter of the
litigation and may at any time, if acting in good
faith, settle and adjust the cause of action out of
court before judgment, even without the attorney’s
intervention. (Malvar v. Kraft Food Phils., Inc.,
G.R. No. 183952, 2013).
g. Reply
Nature of a Reply
A reply is a pleading, the office or function of which
is to deny, or allege facts in denial or avoidance
of new matters alleged in, or relating to, an
actionable document. (Rule 6, Sec. 10). It is the
responsive pleading to an answer. (RIANO, 2019,
p. 367).
The allegations in plaintiffs' reply were in answer
to defendants' defenses, and the nature of
plaintiffs' cause of action, as set forth in their
complaint, was not and could not be amended or
changed by the reply (Calo v. Roldan, G.R. No. L252, March 30, 1946)
A reply to a counterclaim or cross-claim is
improper. An answer thereto must be filed instead.
(FERIA, 2013 Vol. 1, p. 327)
When Filing of Reply is Allowed
The plaintiff may file a reply only if the defending
party attaches an actionable document to his or
her answer. If the plaintiff wishes to interpose any
claim arising out of the new matters so alleged,
such claims shall be set forth in an amended or
supplemental complaint. (Rule 6, Sec. 10)
Actionable Document
An actionable document is a document upon
which an action or defense is based. (Rule 8, Sec.
7).
A document is actionable when an action or
defense is grounded upon such written instrument
or document. (Asian Construction & Dev’t Corp. v.
Mendoza, G.R. No. 176949, Jun. 26, 2012)
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Examples of an actionable document:
i. Promissory note in an action for collection of sum
of money;
ii. Deed of mortgage in an action for foreclosure of
mortgage;
iii. Official receipt of payment on the part of a
defendant raising payment as a defense.
(RIANO, 2019, p. 310)
Effect of Not Filing a Reply
If a party does not file such reply, all the new
matters alleged in the answer are deemed
controverted or denied. No admission follows from
the failure to file a reply. (Rule 6, Sec. 10)
h. Extension Of Time To File Pleadings
Extension is Allowed Only for Filing an Answer
A defendant may, for meritorious reasons, be
granted an additional period of not more than 30
calendar days to file an answer. A defendant is
only allowed to file 1 motion for extension of
time to file an answer.
A motion for extension to file any pleading, other
than an answer, is prohibited and considered a
mere scrap of paper. (Sec. 11, Rule 11).
The court, however, may allow any other pleading
to be filed after the time fixed by the Rules. (Id.).
2. PLEADINGS ALLOWED IN SMALL
CLAIMS CASES AND CASES COVERED BY
THE RULE ON SUMMARY PROCEDURE
a. Pleadings Allowed In Small Claims Cases
Under the Revised Rules of Procedure for Small
Claims Cases, the pleadings allowed in small
claims cases are:
i. Statement of Claims (Sec.6);
ii. Response (Sec. 13); and
iii. Counterclaim (Sec. 15).
Procedure for Small-Claims Cases
A small-claims action is commenced by filing with
the court:
1. An accomplished and verified Statement of
Claim in duplicate;
2. A Certification of Non-forum Shopping,
Splitting a Single Cause of Action, and
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Multiplicity of Suits accompanying the
Statement of Claim; and
3. Two (2) duly certified photocopies of the
actionable document/s subject of the claim,
as well as the affidavits of witnesses and
other evidence to support the claim. (Sec. 6,
Revised Rules of Procedure for Small Claims
Cases, as amended)
The plaintiff may join in a single statement of claim
one or more separate small claims against a
defendant provided that the total amount claimed,
exclusive of interest and costs, does not exceed
the jurisdictional amounts. (Sec. 8, Revised Rules
of Procedure for Small Claims Cases, as
amended)
If the court finds no grounds for dismissal, it shall
issue summons to the defendant accompanied by
a copy of the Statement of Claim and documents
submitted by the plaintiff, and a blank Response
Form to be accomplished by the defendant. (Sec.
12, Revised Rules of Procedure for Small Claims
Cases, as amended)
The defendant shall file his Response within 10
days from the receipt of the summons and serve
the same upon the plaintiff. It shall be
accompanied by certified photocopies of the
documents, as well as the affidavits of
witnesses and other evidence to support his
defense. (Sec. 13, Revised Rules of Procedure for
Small Claims Cases, as amended)
Any claim that the defendant has against the
plaintiff shall be filed as a Counterclaim in the
Response, if at the time the action is
commenced, the defendant has a claim against
the plaintiff that:
1. Is within the coverage of this Rule exclusive of
interests and costs;
2. Arises out of the same transaction or event that
is the subject matter of the plaintiff’s claim;
3. Does not require the joinder of third parties; and
4. Is not the subject of another pending action.
(Sec. 15, Revised Rules of Procedure for Small
Claims Cases, as amended)
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Prohibited Pleadings in Small Claims Cases
The prohibited pleadings in small-claims cases
are:
i. Motion to dismiss the complaint;
ii. Motion for a bill of particulars;
iii. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
iv. Petition for relief from judgment;
v. Motion for extension of time to file pleadings,
affidavits or any other paper;
vi. Memoranda;
vii. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
viii. Motion to declare the defendant in default;
ix. Dilatory motions for postponement;
x. Reply and rejoinder;
xi. Third-party complaints; and
xii. Interventions. (Sec. 16, Revised Rules of
Procedure for Small Claims Cases, as
amended)
Venue for Small-Claims Cases
For small-claims cases, the regular rules of venue
shall apply, to wit, at the election of the plaintiff, in
the MeTC, MTCC, MTC, and MCTC:
a. Where the plaintiff resides;
b. Where the defendant resides; or
c. Where he may be found, in the case of a nonresident defendant.
However, if the plaintiff is engaged in the business
of lending, banking and similar activities, in the city
where the defendant resides, if the plaintiff has a
branch in that city. (Sec. 7, Revised Rules of
Procedure for Small Claims Cases, as amended)
b. Pleadings Allowed By The Rules On
Summary Procedure
Allowed Pleadings in Summary-Procedure
Cases
The pleadings allowed in summary proceedings
are:
i. Complaint;
ii. Compulsory Counterclaim pleaded in the
Answer;
iii. Cross-Claims pleaded in the Answer; and
iv. Answers to the above pleadings.
All pleadings shall be verified (Sec. 3, Revised
Rule on Summary Procedure, as amended)
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Procedure for Cases Under Summary
Procedure
Should the court find that the case falls under
summary procedure and there are no grounds for
dismissal of the complaint, it shall then issue
summons stating that the rules for summary
procedure shall apply. (Sec. 4, Revised Rule on
Summary Procedure, as amended)
An answer shall then be filed within 10 days from
the service of summons and serve a copy thereof
to the plaintiff. (Sec. 5, Revised Rule on Summary
Procedure, as amended)
Defenses not pleaded are deemed waived except
for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not
asserted in the answer are likewise barred. (Sec.
5, Revised Rule on Summary Procedure, as
amended)
Answer to the counterclaims or cross-claims shall
be filed and served within 10 days from the service
of the answer in which they are pleaded. (Sec. 5,
Revised Rule on Summary Procedure, as
amended)
Failure to file an answer the complaint within the
reglementary period shall allow the court, motu
propio, or on motion by the plaintiff, render
judgment as may be warranted by the facts
alleged in the complaint and limited to what is
prayed for therein. (Sec. 6, Revised Rule on
Summary Procedure, as amended)
Prohibited Pleadings
The prohibited pleadings in cases falling under
summary procedure are:
i. Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;
ii. Motion for a bill of particulars;
iii. Motion for new trial, or for reconsideration of
judgment, or for opening of trial;
iv. Petition for relief from judgment;
v. Motion for extension of time to file pleadings,
affidavits or any other paper;
vi. Memoranda;
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vii. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
viii. Motion to declare the defendant in default;
ix. Dilatory motions for postponement;
x. Reply;
xi. Third party complaints; and
xii. Interventions. (Sec. 19, Revised Rule on
Summary Procedure, as amended)
3. PARTS AND CONTENTS OF A PLEADING
a. Caption
The caption contains the following:
1. The name of the court;
2. The title of the action, which indicates:
a. The names of all the parties to the original
complaint or petition, but in subsequent
pleadings, the name of the first party on
each side with an indication that there are
other parties shall be sufficient; and
b. The parties’ respective participation in the
case;
3. The docket number, if assigned. (Sec. 1, Rule
7).
Insufficiency in form and substance, as a ground
for dismissal of the complaint, should not be based
on the title or caption, especially when the
allegations of the pleading support an action. (Sps.
Munsalud v. NHA, G.R. No. 167181, 2008)
Body
The body of the pleading sets forth:
1. Its designation;
2. The allegation of the party’s claims and
defenses;
3. The relief(s) prayed for; and
4. The date of the pleading. (Sec. 2, Rule 7)
The pleadings shall specify the relief sought, but it
may add a general prayer for such further or other
reliefs as may be deemed just or equitable. (Sec.
2(c), Rule 7).
It is settled that courts cannot grant a relief not
prayed for in the pleadings or in excess of what is
being sought by the party. (Diona v. Balangue,
G.R. No. 173559, January 7, 2013).
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Nevertheless, even without the prayer for a
specific remedy, proper relief may be granted by
the court if the facts alleged in the complaint and
the evidence introduced so warrant. The prayer in
the complaint for other reliefs equitable and just in
the premises justifies the grant of a relief not
otherwise specifically prayed for. (Prince
Transport v. Garcia, G.R. No. 167291, 2011)
Insufficiency in form and substance, as a ground
for dismissal of the complaint, should not be based
on the title or caption, especially when the
allegations of the pleading support an action. (Sps.
Munsalud v. NHA, G.R. No. 167181, 2008)
b. Signature And Address
Requirement of Signature
The complaint must be signed by the plaintiff or
counsel representing him/her indicating his/her
address. (Sec. 3(a), Rule 7)
The signature of the counsel constitutes a
certification that he or she:
1. Has read the pleading and documents; and
2. That to best of his knowledge, information, and
belief, and formed after an inquiry reasonable
under the circumstances:
i. The pleading is not being presented for any
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation;
ii. 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;
iii. The factual contentions have evidentiary
support or if specifically, so identified, will
likely have evidentiary support after availing
of the modes of discovery;
iv. The denials of factual contentions are
warranted on the evidence or, if specifically,
so identified, are reasonably based on belief
or a lack of information. (Sec. 3(b), Rule 7)
The court, upon motion or motu propio, and after
notice and hearing, may impose an appropriate
sanction or refer the disciplinary action to the
proper office upon determination that any attorney,
REMEDIAL LAW
law firm, or party violated the above rule. (Sec.
3(c), Rule 7).
A counsel's signature is such an integral part of a
pleading that failure to comply with this
requirement reduces a pleading to a mere scrap of
paper totally bereft of legal effect. Thus, faithful
compliance with this requirement is not only a
matter of satisfying a duty to a court but is as much
a matter of fidelity to one's client. A deficiency in
this respect can be fatal to a client's cause. (Uy v.
Maghari, III, A.C. No. 10525, Sep.r 1, 2015).
c. Verification
Requirement of Verification
Generally, a pleading need not be verified or
under oath except only when verification is
required by a law or by a rule. (Sec. 4, Rule 7)
How Verification is Made
A pleading is verified by an affidavit of an affiant
duly authorized to sign said verification. The affiant
shall allege the following attestations:
1. The allegations in the pleading are true and
correct based on his or her personal knowledge
or based on authentic documents;
2. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the
cost of litigation; and
3. The factual allegations therein have evidentiary
support or, if specifically, so identified, will
likewise have evidentiary support after a
reasonable opportunity for discovery.
The signature of the affiant shall further serve as
certification of the truthfulness of the allegations in
the pleading. (Sec. 4, Rule 7).
The authorization of the affiant to act on behalf of
another party shall be attached to the pleading.
(Sec. 4, Rule 7).
Significance of Verification
Verification is intended to assure that the
allegations in the pleading have been prepared in
good faith or are true and correct, not mere
speculations. (Pfizer Inc. v. Galan, G.R. No.
143389, May 25, 2001)
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Effect of Lack of Verification
A pleading which is required to be verified but
lacks the proper verification shall be treated as an
unsigned pleading which produces no legal effect
and is dismissible. (Sec. 4, Rule 7).
Furthermore, a pleading which requires a
verification shall also be treated as an unsigned
pleading if:
a. It contains a verification based on “information
and belief”; or
b. It contains a verification based upon
“knowledge, information, and belief”.
However, it has been held that the requirement
regarding verification of a pleading is formal, not
jurisdictional—non-compliance with which does
not necessarily render the pleading fatally
defective. The court may order the correction of
the pleading if verification is lacking or act on the
pleading although it is not verified, if the attending
circumstances are such that the strict compliance
with the rules may be dispensed with in order that
the ends of justice may thereby be served.
(Republic v. Coalbrine International Philippines,
Inc., G.R. No. 161838, 2010)
d. Certification Against Forum Shopping
Meaning of Forum Shopping
The essence of forum shopping is the filing of
multiple suits involving the same parties for the
same cause of action, either simultaneously or
successively, for the purpose of obtaining a
favorable judgment. It exists when, as a result of
an adverse opinion in one forum, a party seeks a
favorable opinion in another, or when he institutes
two or more actions or proceedings grounded on
the same cause to increase the chances of
obtaining a favorable decision. (Alonso v.
Relamida, A.C. No. 8481, August 3, 2010).
Three Ways of Committing Forum Shopping
Forum shopping can be committed in 3 ways:
a. Filing multiple cases based on the same cause
of action and with the same prayer, the
previous case not having been resolved (litis
pendentia);
b. Filing multiple cases based on the same cause
of action and with the same prayer, the
REMEDIAL LAW
previous case having been resolved with
finality (res judicata); and
c. Filing multiple cases based on the same
causes of action but with different prayers
(splitting causes of action where the ground for
dismissal is also either litis pendentia or res
judicata). (In re: Ferrer, A.C. No. 8037, Feb. 17,
2016).
Test to Determine Existence of Forum
Shopping
There is forum shopping when the following
elements concur:
1. Identity of the parties or, at least, of the parties
who represent the same interest in both
actions;
2. Identity of the rights asserted and relief prayed
for, as the latter is founded on the same set of
facts; and
3. Identity of the two preceding particulars, such
that any judgment rendered in the other action
will amount to res judicata in the action under
consideration or will constitute litis pendentia
(PAL Employees
Savings
and Loan
Association, Inc. v. Philippine Airlines, Inc.,
G.R. No. 161110, March 30, 2006)
Otherwise stated, to determine forum shopping,
the test is to see whether in the two or more cases
pending, there is identity of parties, rights or
causes
of
action,
and
reliefs
sought.||| (Huibonhoa v. Concepcion, G.R. No.
153785,[August 3, 2006)
Simultaneously pursuing an appeal (or motion for
reconsideration) and a petition for annulment of
judgment is an act of forum shopping. (City of
Taguig v. City of Makati, G.R. No. 208393, Jun. 15,
2016)
The rule against forum shopping was violated
when petitioner filed its petition for Certiorari
despite its pending appeal before the CTA. (PPA
v. City of Davao, G.R. No. 190324, 2018)
Certification Against Forum Shopping
The certification against forum shopping is a
statement executed by the plaintiff or the principal
party under oath and must be signed by the party
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himself/herself and not
attorney. (Sec. 5, Rule 7)
merely
by
his
The certification against forum shopping is a sworn
statement certifying the following matters:
1. That the party has not commenced any action
or filed any claim involving the same issues in
any court, tribunal, or quasi-judicial agency
and, to the best of his/her knowledge, no such
other action or claim is pending therein;
2. That if there is such other pending action or
claim, a complete statement of the present
status thereof; and
3. That if he/she should thereafter learn that the
same or similar action or claim has been filed
or is pending, he/she shall report that fact
within 5 days therefrom to the court wherein
his/her complaint or initiatory pleading was
been filed. (Sec. 5, Rule 7)
The authorization of the affiant to act on behalf of
a party should be attached together with the
pleading and the certification against forum
shopping (Sec. 5, Rule 7)
A certification against forum shopping signed by
counsel is a defective certification that is
equivalent to non-compliance with the requirement
and constitutes a valid cause for the dismissal of
the petition. (Ty-De Zuzuarregui v. Villarosa, G.R.
No. 183788, 2010)
The certificate of non-forum shopping is a
mandatory requirement in filing a complaint and
other initiatory pleadings asserting a claim or
relief. (Sec. 5, Rule 7)
Aside from a complaint, an initiatory pleading also
includes:
1. Permissive counterclaim;
2. Cross-claim;
3. Third (fourth, etc.)-Party complaint;
4. Complaint-in-intervention; and
5.Petition or any application in which a party
asserts his claim for relief. (A.M. No. 04-94)
Effect of Failure Comply with the Rule on
Certification Against Forum Shopping
The failure to comply with the requirements is not
curable by mere amendment of the pleading but
shall be cause for dismissal of the case, without
prejudice, unless otherwise provided. Dismissal
shall be upon motion and after hearing. (Sec. 5,
Rule 7)
Willful and deliberate forum shopping shall be a
ground for summary dismissal and shall
constitute direct contempt as well as a cause for
administrative sanctions. (Id.).
Submission of false certification or noncompliance with the undertakings therein shall
constitute indirect contempt of court, without
prejudice to corresponding administrative and
criminal actions. (Id.).
If the forum shopping is not willful and deliberate,
the subsequent cases shall be dismissed without
prejudice on one of the two grounds mentioned
above. But if the forum shopping is willful and
deliberate, both (or all, if there are more than two)
actions shall be dismissed with prejudice. (Heirs of
Sotto v. Palicte, G.R. No. 159691, 2014).
In order to be held liable for willful and deliberate
forum shopping, there should be, on the party’s
part, either a failure to include the certification in
one's initiatory pleading, or a misrepresentation as
to the pendency of another case involving the
same issues, parties, and causes of actions with
the second complaint. But where plaintiff files his
second complaint, after the court with jurisdiction
over the first complaint had granted a dismissal
order, and such dismissal order has attained
finality, the plaintiff cannot be made liable for forum
shopping. (Daswani v. BDO Universal, G.R. No.
190983, 2015).
Summary of Violations and the Corresponding
Sanctions Under Sec. 5, Rule 7
VIOLATION
SANCTION
Failure to comply with
the requirements of a
certificate of nonforum shopping.
Submission of false
certification or noncompliance
with
certification
undertaking
Cause for dismissal
without
prejudice,
unless
otherwise
provided
Indirect contempt of
court,
without
prejudice
to
corresponding
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Willful and deliberate
forum shopping
administrative
and
criminal actions
Summary
dismissal
with prejudice, direct
contempt,
administrative
sanctions
Requirement of a Corporation Executing the
Verification/ Certification of Non-Forum
Shopping
The certification may be executed by an
authorized person as long as he/she is duly
authorized by the corporation and has personal
knowledge of the facts required to be disclosed in
the certification against forum shopping, the
certification may be signed by the authorized
lawyer. (National Steel Corporation v. CA, G.R.
No. 134468, 2002)
If the petitioner is a corporation, a board
resolution authorizing a corporate officer to
execute the certification against forum shopping is
necessary—a certification not signed by a duly
authorized person renders the petition subject to
dismissal. (Gonzales v. Climax Mining Ltd., 452
SCRA 607, 2005)
Where a general manager of a corporation signs
the verification and certification against forum
shopping without attaching therewith a
corporate secretary’s certificate or board
resolution that he is authorized to sign for and on
behalf of the petitioner-corporation, such failure
is not fatal to the complaint of the corporation.
This is especially true where the requisite board
resolution was subsequently submitted to the
court together with the pertinent documents. The
dismissal on a purely technical ground is frowned
upon especially if it will result in unfairness. The
rules of procedure ought not to be applied in a very
rigid, technical sense for they have been adopted
to help secure, not override, substantial justice.
(Mid-land Pasig Land Development Co. v. Mario
Tablante, G.R. No. 162924, 2010)
There is substantial compliance with the Rules
regarding the need for an authorized person to
sign the certificate when a corporate officer,
previously empowered via board resolution to sign
the certification against forum shopping, executes
a special power of attorney in favor of a manager
of the corporation, and it is the latter who signs the
verification and certificate against forum shopping.
In other words, the power granted by a corporation
to a corporate officer to sign the verification and
certificate may be further delegated, via special
power of attorney, to another. (Fuji Television
Network v. Espiritu, G.R. No. 204944-45, 2014).
.
Verification and Certification Against Forum
Shopping When Petitioner is a Government
Entity
Where the petitioner is a government entity
created by the Constitution, and headed by its
Chairman, there is no need for the Chairman
himself to sign the verification. Its representative,
lawyer or any person who personally knew the
truth of the facts alleged in the petition could sign
the verification.
HOWEVER, with regard to the certification of nonforum shopping, the established rule is that it must
be executed by the plaintiff or any of the principal
parties and not by counsel. Failure to show such
authority to execute the petition on behalf of the
plaintiff or principal party renders the petition
dismissible. (People v. Iroy, G.R. No. 187743,
2010).
Differentiating the Rules on Verification and
Certificate Against Forum Shopping
VERIFICATION
Non-compliance or a
defect therein does not
necessarily render the
pleading
fatally
defective. The court
may
order
its
submission, correction
or act on the pleading
depending on the
attending
circumstances.
CERTIFICATE
AGAINST FORUM
SHOPPING
Non-compliance or a
defect
therein,
is
generally not curable
by its subsequent
submission
or
correction
thereof,
unless there is a need
to relax the Rule on the
ground of "substantial
compliance"
or
presence of "special
circumstances
or
compelling reasons.
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Substantially complied
with when one who has
ample knowledge to
swear to the truth of the
allegations
in
the
complaint signs the
verification.
Must be signed by all
the plaintiffs in a case;
those who did not sign
will be dropped as
parties.
Under
justifiable
circumstances,
however, as when all
the
plaintiffs
or
petitioners share a
common interest and
invoke a common
cause of action or
defense, the signature
of only one of them
substantially complies
with the Rule.
(Fuji Television Network v. Espiritu, G.R. No.
204944-45, 2014).
e. Contents of a pleading
The following are the contents of a pleading:
1. Designation of the pleading;
2. Allegation of the party’s claims and defenses;
3. Reliefs prayed for;
4. Date of the pleading (Sec. 2, Rule 7);
5. Names of witnesses who will be presented to
prove a party’s claim or defense;
6. Summary of the witnesses’ intended
testimonies, as supported by judicial affidavits
attached to the pleading; and
7. Documentary and object evidence in support of
the allegations contained in the pleading. (Sec.
6, Rule 7)
Only witnesses whose judicial affidavits are
attached in the pleading shall be presented by the
parties during trial, except if a party presents
meritorious reasons as basis for the admission of
additional witnesses. (Sec. 6, Rule 7)
4. ALLEGATIONS IN A PLEADING
a. Manner Of Making Allegations
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evidence on which the party pleading relies for
his or her claim or defense, as the case may be.
(Sec. 1, Rule 8).
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. (Id.).
The allegations must also be supported by their
respective documentary and object evidence.
(Sec. 6, Rule 7).
Ultimate Facts
The ultimate facts are the facts essential to a
party’s cause of action or defense, or such facts as
are so essential that they cannot be stricken out
without leaving the statement of the cause of
action inadequate. They are to be stated in a
methodical and logical form, and in a plain,
concise, and direct manner. (RIANO, 2019, p. 280)
Ultimate facts refer to the principal, determinative,
constitutive facts upon the existence of which the
cause of action rests. The term does not refer to
details of probative matter or particulars of
evidence which establish the material ingredients.
(Philippine Bank of Communications v. Trazo,
G.R. No. 165500, Aug. 30, 2006).
Test of Sufficiency of Facts Alleged in the
Complaint to Constitute a Cause of Action
The test of sufficiency of the facts alleged in a
complaint to constitute a cause of action is
whether, admitting the facts alleged, the court
could render a valid judgment upon the same in
accordance with the prayer of the petition or
complaint. To determine whether the complaint
states a cause of action, all documents attached
thereto may, in fact, be considered, particularly
when referred to in the complaint. But the
consideration of the annexed documents should
only be taken in the context of ascertaining the
sufficiency of the allegations in the complaint.
(Lazaro v. Brewmaster International, Inc., G.R. No.
182779, Aug. 23, 2010).
Manner of Making Allegations in General
Every pleading shall contain in a methodical and
logical form, a plain, concise and direct
statement of the ultimate facts, including the
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What are NOT Ultimate Facts:
i. Evidentiary or immaterial facts (Id.);
ii. Legal conclusions, conclusions or inferences of
facts not stated, or incorrect inferences or
conclusions from facts stated (Dalandan v.
Julio, G.R. No. L-19101, Feb. 29, 1964);
iii. The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments (Biñan Rural Bank v. Carlos, G.R.
No. 193919, June 15, 2015], 759 PHIL 416422); or
iv. An allegation that a contract is valid or void is a
mere conclusion of law (Cañete v. Genuino Ice
Co., Inc., G.R. No. 154080, Jan. 22, 2008).
Evidentiary Facts
Evidentiary facts are those which are necessary to
prove the ultimate fact or which furnish evidence
of the existence of some other facts. (Locsin v.
Sandiganbayan, G.R. No. 134458, Aug. 9, 2007)
i. Condition precedent
Nature of a Condition Precedent
Conditions precedent are matters which must be
complied with before a cause of action arises.
(RIANO, 2019, p. 304).
The characteristic of a condition precedent is that
the acquisition of the right is not effected while said
condition is not complied with or is not deemed
complied with. (Parks v. Tarlac, G.R. No. 24190,
Jul. 13, 1926)
REMEDIAL LAW
How to Allege Fraud or Mistake
In averments of fraud or mistake, the
circumstances constituting such fraud or mistake
must be stated with particularity. (Sec. 5, Rule 8)
How to Allege Malice, Intent, or Other
Conditions of the Mind
Malice, intent, knowledge or other conditions of the
mind of a person may be averred generally. (Id.)
How to Plead a Judgment
In pleading a judgment, it is sufficient to aver the
judgment or decision without alleging matters
showing the jurisdiction to render judgment or
decision. (Sec. 6, Rule 8).
Note that jurisdiction is merely a disputable
presumption and not conclusive. (Sec. 3 (n), Rule
131). Hence, lack of jurisdiction may be used as
an affirmative defense (Sec. 5 (b), Rule 6) or as a
ground for a motion to dismiss (Sec. 12 (a)(1),
Rule 15).
It is required to attach an authenticated copy of the
judgment or decision together with the pleading.
(Sec. 6, Rule 8).
How to Plead an Official Document or Act
In pleading an official document or act, it is
sufficient to aver that the official document or the
act was issued or done in compliance with law.
(Sec. 9, Rule 8)
How Are Conditions Precedent Alleged
A general averment of the performance or
occurrence of all conditions precedent shall be
sufficient. (Sec. 3, Rule 8)
The written official acts, or records of the
sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or
of a foreign country are considered public
documents. (Sec. 19 (a), Rule 132).
Effect of Failure to Comply with a Condition
Precedent
The defendant may raise as an affirmative defense
the failure of the plaintiff to comply with a condition
precedent for filing the claim. (Sec. 12 (a)(5), Rule
8).
Public documents are admissible in evidence
without further proof of their due execution and
genuineness, and has, in their favor, the
presumption of regularity (Pen Development
Corporation v. Martinez Leyba, Inc., G.R. No.
211845, Aug. 9, 2017).
ii. Fraud, Mistake, Malice, Intent, Knowledge
And Other Condition Of The Mind, Judgments,
Official Documents, And Acts
Capacity to Sue
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
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of an organized association of persons that is
made a party, must be averred. (Sec. 4, Rule 8)
Example:
i. If X is suing on behalf of Y as an agent, the fact
of Y being an agent must be alleged;
ii. If a corporation is to sue, its due incorporation in
accordance with the law must be duly alleged.
(RIANO, 2019, p. 306).
Facts That May be Averred Generally
i. Conditions precedent (BUT there must still be an
allegation that the specific condition precedent
has been complied with, otherwise, it will be
dismissed); (Sec. 3, Rule 8)
ii. Capacity to sue or be sued; (Sec. 4, Rule 8)
iii. Capacity to sue or be sued in a representative
capacity; (Sec. 4, Rule 8)
iv. Legal existence of an organization; (Sec. 4,
Rule 8)
v. Malice, intent, knowledge, or other condition of
the mind; (Sec. 5, Rule 8)
vi. Judgments of domestic or foreign courts,
tribunals, boards, or officers (no need to show
jurisdiction); and (Sec. 6, Rule 8)
vii. Official document or act. (Sec. 9, Rule 8)
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. (Sec. 2,
Rule 8).
For example, a plaintiff may raise in the alternative
that the liability of the defendant may be based on
either a quasi-delict or a breach of contract even
though he is not yet certain which of the causes of
action will fit the set of facts alleged in the
complaint. (RIANO, 2019, p. 307).
Note that defenses may also be raised in the
alternative. This is consistent with the Omnibus
Motion Rule. (Sec. 9, Rule 15).
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. (Sec. 2, Rule 8).
REMEDIAL LAW
b. Pleading An Actionable Document
In pleading an actionable document, the pleader
must:
1. Set forth in the pleading the substance of the
instrument or the document, and
2. Attach the original or the copy of the document
to the pleading as an exhibit and which shall
form part of the pleading, (Sec. 7, Rule 8).
Note that under the 2019 Amendments, an original
or a copy of the actionable document must be
attached to the pleading. It can no longer be
merely set forth in the pleading.
How to Contest an Actionable Document
An actionable document can be contested:
1. By specific denial under oath; and
2. By setting forth what is claimed to be the
facts. (Sec. 8, Rule 8).
If the defending party attaches an actionable
document to his or her answer, the plaintiff may file
a reply. (Sec. 10, Rule 6).
In current usage, the requirement that the denial
must be under oath means that the denial must be
verified. (RIANO, 2019, p. 310).
Specific denial under oath is not required when:
a. The adverse party does not appear to be a party
to the instrument; or
b. The compliance with an order for an inspection
of the original instrument is refused. (Sec. 8,
Rule 8).
Effect of Failure to Properly Contest an
Actionable Document
Save for the aforementioned exceptions, failure to
specifically deny under oath an actionable
document results in the admission of the
genuineness and due execution of the instrument
by the adverse party. (Sec. 8, Rule 8)
Thus, where the defense in the answer is based
on an actionable document, a reply specifically
denying it under oath must be made; otherwise,
the genuineness and due execution of the
document will be deemed admitted. (Casent
Realty v. Philbanking, G.R. No. 150731, 2007).
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Note: under the 2019 Amendments, a reply is filed
only when an actionable document is attached in
the answer. (Sec. 10, Rule 6).
Admission of Genuineness and Due Execution
By the admission of the genuineness and due
execution of an instrument is meant that the party
whose signature it bears admits that he signed it
or that it was signed by another for him with his
authority; that at the time it was signed it was in
words and figures exactly as set out in the
pleading of the party relying upon it; that the
document was delivered; and that any formal
requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it
lacks, are waived by him. (Hibberd v. Rohde, G.R.
No. 8418, Dec. 9, 1915).
GENUINENESS
DUE EXECUTION
Means
that
the
document
is
not
spurious, counterfeit,
or of different import on
its face from the one
executed by the party;
that the party whose
signature it bears has
signed it; or
that at the time it was
signed, it was in words
and figures exactly as
set
out
in
the
pleadings.
Means
that
the
document was signed
voluntarily
and
knowingly by the party
whose
signature
appears thereon; if
signed by somebody
else,
such
representative had the
authority to do so; and
it was duly delivered,
and that the formalities
were complied.
(FERIA, 2013, p. 358-359).
Defenses Cut Off by the Admission of
Genuineness and Due Execution
By the admission of the genuineness and due
execution of the instrument, the following defenses
are waived:
1. Forgery in the signature;
2. Lack of authority or capacity to execute the
document;
3. Want of delivery; or
4. At the time the document was signed, it was not
in words and figures exactly as set out in the
pleading. (Hibberd v. Rohde, G.R. No. 8418,
Dec. 9, 1915).
Defenses Not Cut Off by the Admission of
Genuineness and Due Execution
i. Payment or non-payment;
ii. Want or illegality of consideration;
iii. Fraud;
iv. Mistake
v. Usury; (Id.)
vi. Prescription;
vii. Release;
viii. Statute of Frauds;
ix. Estoppel;
x. Former Recovery or Discharge; and
xi. Bankruptcy. (RIANO, 2019, p. 313, 330, citing
Acabal v. Acabal, G.R. No. 148376, Mar. 31,
2005).
Failure to specifically deny under oath the
genuineness and due execution of an actionable
document generally implies an admission of the
same by the other party. However, such implied
admission is deemed waived if the party
asserting the same has allowed the adverse party
to present evidence contrary to the contents of
such document without objection. (Central Surety
v. Hodges, G.R. No. L-28633, 1971).
c. Specific Denials
How Made and Purpose
A specific denial is made by specifying each
material allegation of fact, the truth of which the
defendant does not admit and, whenever
practicable, setting forth the substance of the
matters upon which he/she relies to support
his/her denial. (Sec. 10, Rule 8; UA vs. Wallem
Philippines Shipping, Inc G.R. No. 171337. July
11, 2012).
The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly
intends to disprove at the trial, together with the
matter which he relied upon to support the denial.
(Aquintey vs. Tibong, G.R. No. 166704, Dec. 20,
2006, see Rule 8, Sec. 10).
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Three Types of Specific Denial
Under Rule 8, Sec.10, there are three modes of
specific denial:
i. Absolute Denial - by specifying each material
allegation of the fact in the complaint, the truth
of which the defendant does not admit, and
whenever practicable, setting forth the
substance of the matters which he will rely
upon to support his denial;
ii. Partial Denial - by specifying so much of an
averment in the complaint as is true and
material and denying only the remainder
(Partial Denial); and
iii. Denial by Disavowal of Knowledge - by stating
that the defendant is without knowledge or
information sufficient to form a belief as to the
truth of a material averment in the complaint,
which has the effect of a denial. (Republic v.
Gimenez, G.R. No. 174673, Jan. 11, 2016).
Where an answer states that the defendants
“specifically deny the allegations in pars. 2 and 3
of the complaint for want of knowledge or
information sufficient to form a belief as to the truth
thereof, the truth of the matter being those alleged
in the special and affirmative defenses of the
defendants...," this is considered a valid denial, as
the explanation is said to be provided for in the
affirmative and special defenses. (Gaza v. Lim,
G.R. No. 126863, Jan. 16, 2003).
Examples:
i. Absolute Denial – “Defendant denies the truth
of the allegation in par. 7 of the complaint that
he owes the plaintiff P450,000; the truth is that
the plaintiff is the one who owes the defendant
the same amount.”
ii. Partial Denial – “Defendant admits the
allegations in par. 5 of the complaint that
plaintiff sustained injuries in a collision with the
former’s car but denies that the collision was
through the defendant’s fault.”
iii. Denial by Disavowal of Knowledge – In a
complaint for collection of a sum of money, the
complaint duly pleaded a promissory note as
an actionable document. Defendant did not
sign the note and thus denied knowledge of the
note in good faith. (RIANO, 2019, p. 326-327).
The answer should be so definite and certain in its
allegations that the pleader's adversary should not
be left in doubt as to what is admitted, what is
denied, and what is covered by denials of
knowledge as sufficient to form a belief. (Republic
v. Spouses Gimenez, G.R. No. 174673, Jan. 11,
2016).
But the rule, which specifically authorizes an
answer of the defendant that he has no knowledge
or information sufficient to form a belief to the truth
of an averment and which would have an effect of
a denial, does not apply where the fact as to
which want of knowledge is asserted is to the
knowledge of the court as plainly and necessarily
within the defendant’s knowledge that his
averment of ignorance must be palpably untrue.
(Warner Barnes v. Reyes, G.R. No. L-9531, May
14, 1958).
i. Effect Of Failure To Make A Specific Denial
General Rule on Effect of Failure to Make or
Absence of Specific Denial
Failure to make a specific denial will be considered
an admission of the material averments in a
pleading asserting a claim or claims. (Sec. 11,
Rule 8).
The purpose of requiring specific denials from the
defendant is to make the defendant disclose the
matters alleged in the complaint which he [or she]
succinctly intends to disprove at the trial, together
with the matter which he [or she] relied upon to
support the denial. (Id.).
Matters Not Deemed Admitted
Notwithstanding the absence of a specific denial,
the following are not deemed admitted:
1. Allegations as to the amount of unliquidated
damages;
2. Allegations immaterial as to the cause of action;
and
3. Conclusions of law and fact in a pleading. (Sec.
8, Rule 11; RIANO, 2019, p. 331;).
Conclusions of Law
A “conclusion of law" is defined as a proposition
not arrived at by any process of natural reasoning
from a fact or combination of facts stated but by
the application of the artificial rules of law to the
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facts pleaded. (Siquian v. People, G.R. No. 82197,
Mar. 13, 1989).
REMEDIAL LAW
ii. When A Specific Denial Requires An Oath
A pleading should state the ultimate facts essential
to the rights of action or defense asserted, as
distinguished from mere conclusions of fact, or
conclusions of law. General allegations that a
contract is valid or legal, or is just, fair and
reasonable, are mere conclusions of law.
Likewise, allegations that a contract is void,
voidable, invalid, illegal, ultra vires, or against
public policy, without stating facts showing its
invalidity, are mere conclusions of law. (Abad v.
Court of First Instance of Pangasinan, Branch VIII,
G.R. Nos. 58507-08, February 26, 1992).
When Oath is Required in a Specific Denial
When an action or defense is based on an
actionable document, the denial must be under
oath and must set forth what he or she claims to
be the facts. (Sec. 8, Rule 8)
Labelling an obligation to have prescribed without
specifying the circumstances behind it is a mere
conclusion of law. (Mercene v. Government
Service Insurance System, G.R. No. 192971,
January 10, 2018).
d. Affirmative Defenses
General Denial Amounting to Admission
A general denial is one which puts in issue all the
material averments of the complaint or petition and
permits the defendant to prove any and all facts
which tend to negate those averments or someone
or all of them. (Loyola vs. House of
Representatives Electoral Tribunal, G.R. No.
109026, Jan. 4, 1994).
The 2019 Amendments do not require anymore
that allegations of usury in a complaint to recover
usurious interest be denied under oath.
See prior discussions on Denial of an Actionable
Document.
Definition
An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the
material allegations in the pleading of the claimant
would nevertheless prevent or bar recovery by
him. (Sec. 5(b), Rule 6)
Before an allegation qualifies as an affirmative
defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action
(Pesane Animas Mongao v. Pryce Properties
Corp., G.R. No. 156474, 2005)
A general denial does not become specific by the
use of the word "specifically." When matters of
whether the defendant alleges having no
knowledge or information sufficient to form a belief
are plainly and necessarily within the defendant’s
knowledge, an alleged "ignorance or lack of
information" will not be considered as a specific
denial. (Republic v. Gimenez, G.R. No. 174673,
Jan. 11, 2016).
Classification of Affirmative Defenses
Under the 2019 Amendments, the affirmative
defenses can be classified into three groups:
i. Affirmative defenses under the first paragraph of
Section 5 (b) of Rule 6;
ii. Affirmative defenses under the second
paragraph of Section 5 (b) of Rule 6; and
iii. Affirmative defenses under Section 12 (a), Rule
8.
Negative Pregnant Amounting to Admission
It is a denial pregnant with the admission of the
substantial facts in the pleading responded to
which are not squarely denied. It was in effect an
admission of the averments it was directed
at. (Marcos, Jr. v. PCGG, G.R. No. 189434, April
25, 2012)
Affirmative Defenses Under the First
Paragraph of Section 5 (b) of Rule 6
The affirmative defenses under the first paragraph
of Section 5 (b) of Rule 6 are:
1. Fraud;
2. Statute of limitations (Prescription);
3. Release;
4. Payment;
5. Illegality;
6. Statute of frauds;
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7. Estoppel;
8. Former recovery;
9. Discharge in bankruptcy; and
10. Any other matter by way of confession and
avoidance.
In resolving the above affirmative defenses, 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. (Sec. 12 (d), Rule 8).
Affirmative Defenses Under the Second
Paragraph of Section 5 (b) of Rule 6
The affirmative defenses under the second
paragraph of Section 5 (b) of Rule 6 are:
1. That the court has no jurisdiction over the
subject matter;
2. That there is another action pending between
the same parties for the same cause;
3. That the action is barred by prior judgment.
Under the 2019 Amendments, the above
affirmative defenses, including prescription, are
also the grounds for a motion to dismiss under
Section 12 (a) of Rule 15.
Affirmative Defenses Under Section 12 (a) of
Rule 8
The affirmative defenses under Section 12 (a) of
Rule 8 are:
1. That the court has no jurisdiction over the
person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no
cause of action; and
5. That a condition precedent for filing the claim
has not been complied with.
As to the above affirmative defenses, the court
shall motu propio resolve them within 30 days from
the filing of the answer. (Sec. 12 (c), Rule 8).
Effect of Failure to Raise Affirmative Defenses
Failure to raise the affirmative defenses at the
earliest opportunity shall constitute waiver thereof.
(Sec. 12 (b), Rule 8).
Exception: The following affirmative defenses are
not deemed waived:
1. The court has no jurisdiction over the subject
matter;
2. There is another action pending between the
same parties for the same cause;
3. The action is barred by a prior judgment; or
4. The action is barred by the statute of limitations.
(Sec. 1, Rule 9).
When the above grounds appear from the
pleadings or from the evidence on record, the
court shall dismiss the claim motu propio. (Id;
(Heirs of Valientes v. Ramas, G.R. No. 157852,
Dec. 15, 2010).
However, the ground for dismissal must be evident
from the pleadings or from the evidence on record
before a Court can dismiss a case motu proprio
(De Leon v. Chu, G.R. No. 186522 Sep. 2, 2015).
Summary of Affirmative Defenses
Under Rule
Under Rule
Under Sec.
6, Sec. 5(b)
6, Sec. 5(b)
12 (a), Rule 8
par. 1
par. 2
1. Fraud;
2. Lack of
1. Lack of
2. Statute of
jurisdiction
jurisdiction
limitations;
over the
over the
3. Release;
subject
person of the
4. Payment;
matter;
defendant
5. Illegality;
2. Res
2. Improper
6. Statute of
judicata;
venue;
frauds;
3. Litis
3. Lack of
7. Estoppel;
pendentia
capacity to
8. Former
sue of the
recovery;
plaintiff;
9. Discharge
4. Failure to
in bankruptcy;
state a cause
and
of action;
10. Any other
5. Nonmatter by way
compliance
of confession
with condition
and
precedent
avoidance.
Court
may
conduct
a
summary
hearing within
15 days from
Resolved by
the court motu
propio when
the grounds
(including
Resolved by
the court motu
propio within
30 days from
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Under Rule
6, Sec. 5(b)
par. 1
filing
the
answer
and
resolve
the
same within
30 days from
the
termination of
the summary
hearing.
Affirmative
defenses not
a ground for a
motion
to
dismiss
except
for
statute
of
limitations/
prescription.
Under Rule
6, Sec. 5(b)
par. 2
prescription)
appear from
the pleadings
or
the
evidence on
record.
Affirmative
defenses are
grounds for a
motion
to
dismiss.
Under Sec.
12 (a), Rule 8
filing
answer.
the
Affirmative
defenses not a
ground for a
motion
to
dismiss.
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. (Sec. 13, Rule 8).
When Can Striking Out be Made
a. Upon motion by a party before responding to a
pleading;
b. Upon motion by a party within 20 days after
service of the pleading upon him if no
responsive pleading is permitted; or
c. Upon court’s own initiative at any time. (Id.).
5. EFFECT OF FAILURE TO PLEAD
a. Failure To Plead Defenses And
Objections
Effect of Failure to Plead Defenses and
Objections
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. (Sec. 1, Rule 9).
Grounds Not Deemed Waived
Failure to plead the following defenses does not
result in their waiver:
i. Lack of jurisdiction over the subject matter;
ii. Litis pendentia;
iii. Res judicata
iv. Prescription or Statute of limitations. (Id.).
While not included in the above enumeration
under Section 1, Rule 9 of the Rules of Court, the
Court has ruled in previous cases that laches need
not be specifically pleaded and may be considered
by the court on its own initiative in determining the
rights of the parties. (Heirs of Valientes v. Ramas,
G.R. No. 157852, Dec. 15, 2010).
Lack of jurisdiction over the subject matter may be
raised at any stage of the proceedings, even for
the first time on appeal.
Exception: Estoppel by laches (Tijam
Sibonghanoy, G.R. No. L-21450, 1968)
v.
See prior discussion on Effect of Failure to Raise
Affirmative Defenses regarding defenses not
deemed waived.
b. Failure To Plead A Compulsory
Counterclaim Or Cross-Claim
Effect of Failure to Set Up Counterclaim or
Cross-Claim
A compulsory counterclaim, or cross-claim, not set
up at the time a defending party files his answer,
shall be BARRED. (Sec. 2, Rule 9).
Note, however, that this applies to a compulsory
counterclaim. A permissive counterclaim will not
be barred. (RIANO, 2019, p. 356).
How to Set Up Omitted Counterclaim or Crossclaim
An AMENDED ANSWER is proper if the
counterclaim or cross claim ALREADY EXISTED
at the time the original answer was filed, but due
to oversight, inadvertence, or excusable neglect, it
was not set up. (Sec. 10, Rule 11; FERIA, 2013, p.
379).
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A SUPPLEMENTAL ANSWER is proper if the
counterclaim or cross-claim matures or is acquired
AFTER the answer is filed. (Sec. 9, Rule 11;
FERIA, 2013, p. 379).
See prior discussions on Counterclaims and
Cross-claims
6. DEFAULT
Nature of Default
Default is a procedural concept that occurs when
the defending party fails to file his answer within
the reglementary period. It does not occur from the
failure of the defendant to attend either the pre-trial
or the trial. (RIANO, 2019, p.333).
A declaration or order of default is issued as a
punishment for unnecessary delay in joining
issues. In such event, defendants lose their
standing in court, and they cannot expect the trial
court to act upon their pleadings. (Vlason
Enterprises Corp. v. Court of Appeals, G.R. Nos.
121662-64, Jul. 6, 1999).
The defendant’s non-appearance in the hearing
and the failure to adduce evidence does NOT
constitute default when an answer has been filed
within the reglementary period. Instead, it amounts
to a waiver of the defendant’s right to object to the
evidence presented during such hearings and to
cross-examine the witness presented. (Monzon v.
Sps Relova v. Addio Properties, G.R. No. 17182,
2008)
a. When A Declaration Of Default Is Proper
Declaration 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. (Sec. 3, Rule 9).
An answer is to be filed by the defendant within 30
days after service of summons, unless the court
fixes a different period. (Sec. 1, Rule 11).
Filing a motion to dismiss or a motion for a bill of
particulars will interrupt the running of the period
REMEDIAL LAW
to file an answer. Thus, if these two motions are
filed, a defendant may NOT be declared in default
pending the resolution of these two motions. (see
Sec. 5, Rule 12; Spouses Barraza v. Campos, Jr.,
G.R. No. L-50437, Feb. 28, 1983).
Extension of Time to File an Answer
Under the 2019 Amendments, a defendant may,
for meritorious reasons, be granted an additional
period of not more than 30 days to file an answer.
A defendant is only allowed to file one motion for
extension of time to file an answer. (Sec. 11, Rule
11).
Admission of Answer Filed Out of Time
When there is no declaration of default yet, the
answer may be admitted even if filed out of time.
The rule is that the defendant's answer should be
admitted where it is filed before a declaration of
default and no prejudice is caused to the plaintiff.
Where the answer is filed beyond the
reglementary period but before the defendant is
declared in default and there is no showing that
defendant intends to delay the case, the answer
should be admitted. (Spouses Lumanas v. Sablas,
G.R. No. 144568, Jul. 3, 2007).
Requisites Before a Party May be Declared in
Default:
1. The court has validly acquired jurisdiction over
the person of the defending party, either by
service of summons or voluntary appearance;
2. The defending party failed to file the answer
within the time allowed therefore;
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 provided by the Rules of Court;
5. The defending party must be notified of the
motion to declare him in default;
6. There must be a hearing of the motion to declare
the defending party in default.
(FERIA, 2013 p. 383, citing Sps. Delos Santos v.
Carpio, G.R. No. 153696, Sep. 11, 2006).
The default of the defending party cannot be
declared motu proprio. (Momarco Import Co., Inc.
v. Villamena, G.R. No. 192477, Jul. 27, 2016).
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Two Stages of Default
1. Declaration or Order of Default; and
2. Rendition of Judgment by Default
(Sec. 3, Rule 9).
General Rule: A default order and consequently,
a default judgment are triggered by the failure to
file the required answer by the defending party.
(Id.).
Exceptions:
Despite an answer being filed, a JUDGMENT BY
DEFAULT may still be rendered in the following
circumstances:
a. If a party refuses to obey an order requiring him
to comply with the various modes of discovery
(Sec. 3 (c), Rule 29); or
b. If a party or officer or managing agent of a party
willfully fails to appear before the officer who is
to take his deposition (Sec. 5, Rule 29).
But note that the failure to attend the pre-trial does
not result in the “default” of the defendant. Instead,
the failure to attend shall be cause to allow the
plaintiff to present evidence ex parte and for the
court to render judgment on the basis thereof.
(RIANO, 2019, p. 334, citing Aguilar v.
Lightbringers Credit Cooperative, G.R. No.
209605, Jan. 12, 2015).
While the effect of the failure of the defendant to
appear at the pre-trial is similar to that of default,
this consequence is not to be called “declaration
of default.” (Id.)
Order of Default vs. Judgment by Default
ORDER OF
JUDGMENT BY
DEFAULT
DEFAULT
Issued by the court Rendered by a court
upon plaintiff’s motion after a default order
for failure of the has been issued or
defendant to file his after it has received,
responsive pleading ex parte, plaintiff’s
within
the evidence.
reglementary period.
Bars the party in Grants the claimant
default
from the relief his pleading
participating in trial, may warrant, unless
but he is entitled to the court requires him
to submit evidence,
notices of subsequent
proceedings.
but it shall not exceed
the amount or be
different in kind from
that prayed for nor
award
unliquidated
damages.
Final
Order
–
Appealable.
Interlocutory Order –
Not
appealable
through
ordinary
appeal.
(Sec. 3, Rule 9; Manila Electric Co. v. La Campana
Food Products, Inc., G.R. No. 97535, Aug. 4,
1995).
b. Effect Of An Order Of Default
Effects of an Order of Default
Once a party has been declared in default, he shall
not take part in the trial, but he shall be entitled to
notices of subsequent proceedings. (Sec. 3 (a),
Rule 9).
A defendant declared in default loses his or her
standing in court. He or she is deprived of the right
to take part in the trial and forfeits his or her rights
as a party litigant, has no right to present evidence
supporting his or her allegations, and has no right
to control the proceedings or cross-examine
witnesses. Moreover, he or she has no right to
expect that the court would act upon his or her
pleadings, or that he or she may oppose motions
filed against him or her. (Lui Enterprises, Inc. v.
Zuellig Pharma Corp., G.R. No. 193494, Mar. 12,
2014).
While the defendant can no longer take part in the
trial, he is nevertheless entitled to notices of
subsequent proceedings. He may participate in
the trial not as a party but as a witness. (Cavili v.
Florendo, G.R. No. 73039, Oct. 9, 1987).
Notices Which Party in Default is Entitled To
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
(Sec. 3, Rule 9).
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Options of the Court After Declaration of
Default
The court, upon its own discretion may:
a. Proceed to render judgment; OR
b. Require the plaintiff to present his evidence ex
parte according to judicial discretion. The
reception of the evidence may be done by the
court or delegated to the clerk of court.
(Id.).
A declaration of default is NOT an admission of the
truth or the validity of the plaintiff’s claims.
(Monarch Insurance v. CA, G.R. No. 92735, Jun.
8, 2000)
Complainants are not automatically entitled to the
relief prayed for, once the defendants are declared
in default. Favorable relief can be granted only
after the court has ascertained that the relief is
warranted by the evidence offered and the facts
proven by the presenting party. Quantum of proof
of plaintiff remains the same even with defendant’s
default. (Gajudo v. Traders Royal Bank, G.R. No.
151098, Mar. 21, 2006).
c. Relief From An Order Of Default
Remedies of a Party Declared in Default
1. After notice of order of default but before
judgment: motion under oath to set aside order
of default when failure to answer is based on
fraud, accident, mistake, excusable negligence
and the defendant has a meritorious defense
(Sec. 3 (b), Rule 9).
2. After judgment but before it becomes final and
executory: motion for new trial (Sec. 1 (a), Rule
37); or appeal from the judgment rendered
against him as contrary to the evidence or to
the law, even if no petition to set aside the order
of default has been presented by him (Sec. 2,
Rule 41);
3. After the judgment has become final and
executory: petition for relief (Sec. 1, Rule 38)
4. After an improvident declaration of default:
Petition for certiorari to declare the nullity of a
judgment by default is also available if the trial
court improperly declared a party in default, or
even if the trial court properly declared a party
in default, if grave abuse of discretion attended
such declaration. (Gomez v. Montalban, G.R.
No. 174414, Mar. 14, 2008).
REMEDIAL LAW
The remedies of the motion to set aside order of
default, motion for new trial, and petition for relief
from judgment are mutually exclusive, not
alternative or cumulative. Depending on when
the default was discovered and whether a default
judgment was already rendered, a defendant
declared in default may avail of only one of the
three remedies. (Lui Enterprises, Inc. v. Zuellig
Pharma Corp., G.R. No. 193494, Mar. 12, 2014).
Requisites for Motion to Set Aside Order of
Default
The defendant's motion to set aside order of
default must satisfy three conditions:
1. The defendant must challenge the default order
before judgment by filing a motion under oath.
2. The defendant must have been prevented from
filing his answer due to fraud, accident, mistake
or excusable negligence;
3. The defendant must have a meritorious
defense. (Sec. 3 (b), Rule 9; Lui Enterprises,
Inc. v. Zuellig Pharma Corp., G.R. No. 193494,
Mar. 12, 2014).
4. The motion to lift order of default must be
appended an affidavit showing the invoked
ground, and another, denominated affidavit of
merit, setting forth facts constituting the party's
meritorious defense or defenses. (Spouses
Manuel v. Ong, G.R. No. 205249, Oct. 15,
2014).
Rule 9, Section 3 (b) gives an exclusive list of only
4 grounds that allow for relief from orders of
default. Moreover, these grounds — extrinsic
fraud, accident, mistake, and excusable
negligence — relate to factors that are
extraneous to a defendant, that is, grounds that
show that a defendant was prevented, by reasons
beyond his or her influence, from timely filing an
answer. (Id.).
Excusable negligence is one which ordinary
diligence and prudence could not have guarded
against. (Lui Enterprises, Inc. v. Zuellig Pharma
Corp., G.R. No. 193494, Mar. 12, 2014).
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d. Effect Of A Partial Default
Elements of Partial Default
1. The default asserting a claim states a common
cause of action against several defending
parties;
2. Some of the defending parties answer and the
others fail to do so; and
3. The answer interposes a common defense.
(Sec. 3(c), Rule 9).
Effects of Partial Default
The court shall try the case against ALL the
defending parties based on the answers filed and
render judgment upon the evidence presented
where the claim states a common cause of action
against them. (Id.).
The effects, therefore, of a failure to file a separate
answer when other co-defendants had already
filed theirs, are limited to the following:
1. While the non-answering defendants may be
declared in default, the court would still try the
case against them on the assumption that they
are deemed to have adopted the answer of the
answering defendants; and
2. If declared in default, the defaulting party is
deprived of no more than the right to take part
in the trial. Consequently, the result of the
litigation, whether favorable or unfavorable,
shall affect and bind the defaulting party and
the answering defendant with equal force and
effect. (Grageda v. Gomez, G.R. No. 169536,
Sep. 21, 2007).
The rule on partial default does not apply where
the defenses of the answering defendants were
personal to them, such as forgery. (Luzon Surety
Co v. Magbanua, G.R. No. L-41804, Jul. 30,
1976).
e. Extent Of Relief
Extent of Relief Granted to Claiming Party
A judgment rendered against a party declared in
default shall not:
1. Exceed the amount prayed for;
2. Be different in kind from that prayed for;
3. Award unliquidated damages.
(Sec. 3(d), Rule 9).
REMEDIAL LAW
Example:
If the complaint seeks to recover P1 million, but the
evidence shows that the plaintiff has a right to
recover P1.5 million, only P1 million should be
granted because a judgment rendered against a
party in default shall not exceed the amount
prayed for. (RIANO, 2019, p. 343).
f. Actions Where Default Is Not Allowed
Cases Where a Declaration of Default Cannot
be Made
1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation; (Sec. 3(e), Rule 9).
4. Special civil actions of certiorari, prohibition and
mandamus where comment instead of an
answer is required to be filed (Sec. 6, Rule 65);
and
5.
Cases
under
Rules
on
Summary
Procedure (Sec. 19, Revised Rule on
Summary Procedure, as amended);
6. Cases under Rules on Small Claims (Sec. 16,
Revised Rules of Procedure for Small Claims
Cases, as amended).
7. Cases under the Rules on the Writ of Amparo
(Sec. 11, Rule on the Writ of Amparo); and
8. Cases under the Rules on the Writ of Habeas
Data (Sec. 13, Rules on the Writ of Habeas
Data).
Failure to File a Comment in Cases of
Certiorari, Prohibition and Mandamus
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. (Sec. 7, Rule 47).
Failure to File an Answer in the Cases of
Annulment or Nullity of Marriage or Legal
Separation
If the defending party in an action for annulment
or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order
the Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a
collusion between the parties exists, and if there is
no collusion, to intervene for the State in order
to see to it that the evidence submitted is not
fabricated. (Sec. 3 (e), Rule 9).
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7. FILING AND SERVICE OF PLEADINGS
Failure to File Response In Small Claims Cases
Should the defendant fail to file his/her/its
Response within the required period, and likewise
fail to appear on the date set for hearing, the court
shall render judgment on the same day, as may be
warranted by the facts alleged in the Statement of
Claim/s. (Sec. 14, Revised Rules of Procedure for
Small Claims Cases, as amended).
Should the defendant fail to file his/her/its
Response within the required period but appears
on the date set for hearing, the court shall
ascertain what defense he/she/it has to offer which
shall constitute his/her/its Response and proceed
to hear or adjudicate the case on the same day as
if a Response has been filed. (Id.).
Failure to File an Answer in Cases Covered by
the Rule on Summary Proceeding
The defendant who fails to file an answer
seasonably is not supposed to be declared in
default. Instead, the court, motu proprio or upon
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. (Sec.
6, Revised Rule on Summary Procedure, as
amended).
Failure to File a Return Under the Rules on the
Writ of Amparo
Upon the service of the writ of amparo, the
respondent is required to file a verified return
which contains his lawful defenses (Sec. 9, Rule
on the Writ of Amparo).
Should respondent fail to file a return, the court,
justice, or judge shall proceed to hear the petition
ex parte. (Sec. 12, Rule on the Writ of Amparo).
Failure to File a Return Under the Rules on the
Writ of Habeas Data
If the respondent fails to file his return which
contains his lawful defenses, the court, justice, or
judge shall proceed to hear the petition ex parte,
granting such relief as his petition may warrant, or
require the petitioner to submit further evidence.
(Sec. 4, Rules on the Writ of Habeas Data).
a. Payment Of Docket Fees
Payment of Docket Fees – Jurisdictional For
Initiatory Pleadings
It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of
the prescribed docket fees that vests a trial court
with jurisdiction over the subject matter or nature
of the action. (Serrano v. Delica, G.R. No. 136325,
Jul. 29, 2005).
A case is deemed filed only upon payment of the
docket fee regardless of the actual date of filing in
court. And neither can the amendment of the
complaint thereby vest jurisdiction upon the Court.
For all legal purposes, there is no such original
complaint that was duly filed which could be
amended. (Manchester Development Corp v. CA,
G.R. No. 75919, May 7, 1987)
The court requires that all complaints, petitions,
answers, and similar pleadings must specify the
amount of damages being prayed for both in the
body of the pleading and in the prayer, and said
damages shall be considered in the assessment of
the filing fees in any case. Any pleading that fails
to comply with this requirement shall not be
accepted nor admitted or shall otherwise be
expunged from the record. (Id.)
Aggregate Amount Claimed as Basis for
Assessment of Docket Fees
For actions involving recovery of money or
damages, the aggregate amount claimed should
be the basis for assessment of docket fees. Thus,
the basis for the assessment of the filing fees
should not have been only the principal amounts
due on the loans, but also the accrued interests,
penalties, and attorney's fees. (Heirs of Dragon v.
The Manila Banking Corp., G.R. No. 205068,
2019)
Liberal Interpretation on the Non-Payment of
Docket Fees
Notwithstanding the mandatory nature of the
requirement of payment of appellate docket fees,
we also recognize that its strict application is
qualified by the following:
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i. Failure to pay those fees within the reglementary
period allows only discretionary, not automatic,
dismissal;
ii. Such power should be used by the court in
conjunction with its exercise of sound
discretion in accordance with the tenets of
justice and fair play, as well as with a great deal
of circumspection in consideration of all
attendant circumstances.
(Heirs of Reinoso, Sr. v. Court of Appeals, G.R.
No. 116121, Jul. 18, 2011)
While the court acquires jurisdiction over any case
only upon the payment of the prescribed docket
fees, its non-payment at the time of filing of the
initiatory pleading does not automatically cause its
dismissal provided that: (a) the fees are paid within
a reasonable period; and (b) there was no
intention on the part of the claimant to defraud the
government. (Camaso v. TSM Shipping (Phils),
Inc., G.R. No. 223290, Nov. 7, 2016).
Note: the payment of docket fees for compulsory
counterclaim is no longer required. A.M. No. 04-204-SC which included the payment of docket fees
of compulsory counterclaims has been suspended
since September 21, 2004 by virtue of OCA
Circular 96-2009.
Insufficient Payment of Docket Fees
If the amount of docket fees paid is insufficient
considering the amount of the claim, the clerk of
court of the lower court involved or his duly
authorized deputy has the responsibility of making
a deficiency assessment. The party filing the case
will be required to pay the deficiency, but
jurisdiction is not automatically lost. (Rivera v. Del
Rosario, G.R. No. 144934, Jan. 15, 2004).
Where the court in its final judgment awards a
claim not alleged, or a relief different from, or more
than that claimed in the pleading, the party
concerned shall pay the additional fees which shall
constitute a lien on the judgment in satisfaction of
said lien. The clerk of court shall assess and
collect the corresponding fees. (Sec. 2, Rule 141).
The rule that “the additional docket fee therefor
shall constitute a lien on the judgment” applies
only to damages arising after the filing of the
REMEDIAL LAW
complaint or similar pleading, for then it will not be
possible for the claimant to specify nor speculate
as to the amount thereof. (GSIS v. Caballero, G.R.
No. 158090, 2010).
But the general rule remains that the amount of
any claim for damages, therefore, arising on or
before the filing of the complaint or any pleading
should be specified. It is the duty of the parties
claiming such damages to specify the amount
sought on the basis of which the court may make
a proper determination, and for the proper
assessment of the appropriate docket fees. (Ayala
Corp. v. Madayag, G.R. No. 88421, Jan. 30,
1990).
Effect of Failure to Pay Docket Fees on the
Amended or Supplemental Complaint
The lower court acquired jurisdiction over the case
when private respondent paid the docket fee
corresponding to its claim in its original complaint.
Its failure to pay the docket fee corresponding to
its increased claim for damages under the
amended complaint should not be considered as
having curtailed the lower court's jurisdiction. The
unpaid docket fee should be considered as a lien
on the judgment even though private respondent
specified the amount of P600,000.00 as its claim
for damages in its amended complaint. (PNOC
Shipping and Transport Corp. v. Court of Appeals,
G.R. No. 107518, Oct. 8, 1998).
What the plaintiffs failed to pay was merely the
filing fees for their Supplemental Complaint. The
RTC acquired jurisdiction over plaintiffs' action
from the moment they filed their original complaint
accompanied by the payment of the filing fees due
on the same. The plaintiffs' non-payment of the
additional filing fees due on their additional claims
did not divest the RTC of the jurisdiction it already
had over the case. (Do-All Metals Industries, Inc.
v. Security Bank Corp., G.R. No. 176339, Jan. 10,
2011).
b. Distinguish: Filing And Service Of
Pleadings
Filing and Service, Defined
Filing is the act of submitting the pleading or other
paper to the court. (Sec 2, Rule 13).
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Service is the act of providing a party with a copy
of the pleading or any other court submission. (Id.).
9. Offers of judgment; and
10. Similar papers. (Rule 13, Sec. 4)
Note that service may also be made by the court.
(see Secs. 13 and 18, Rule 13).
Pleadings subsequent to original complaint and
written motions should first be served on the
parties before they are filed with court. (FERIA,
2013, p. 425).
To Whom Service is Made
a. If the party appears without a counsel – service
is to be made upon such party;
b. If the party appears by counsel - service upon
such party shall be made upon his or her
counsel, unless service upon the party and
the party's counsel is ordered by the court;
c. If one counsel appears for several parties –
same as above, but such counsel shall only be
entitled to one copy of any paper served by the
opposite side;
d. If several counsels appear for one party - such
party shall be entitled to only one copy of any
pleading or paper to be served upon the lead
counsel if one is designated, or upon any one
of them if there is no designation of a lead
counsel. (Id.).
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 the party wrongfully
served. (Republic v. Caguioa, G.R. No. 174385,
Feb. 20, 2013).
The above rule, however, is a procedural standard
that may admit of exceptions when faced with
compelling reasons of substantive justice manifest
in the petition and in the surrounding
circumstances of the case. The Republic’s
subsequent compliance with the rule after being
informed of the presence of counsels of record
sufficiently warrants the rule's relaxed application.
(Id.).
Papers Required to be Filed and Served on the
Parties Affected:
1. Judgments;
2. Resolutions;
3. Orders;
4. Pleadings subsequent to the complaint;
5. Written motion;
6. Notices;
7. Appearances;
8. Demands;
But for ex parte written motions, the original
complaint is first filed, and then served, although
they need not be set for hearing. (Supra. at p.425426).
For judgments, resolutions, and orders of the
court, they should first be filed with the clerk of
court before they are served upon the parties
affected. The act of filing constitutes rendition or
promulgation thereof. (Sec. 1, Rule 36; FERIA,
2013, p. 425).
c. Periods Of Filing Of Pleadings
Answer to Complaint
The defendant shall file his answer to the
complaint within 30 days after service of
summons, unless a different period is fixed by
the court.
Extension of Time to File an Answer
A defendant may, for meritorious reasons, be
granted an additional period of not more than 30
calendar days to file an answer. A defendant is
only allowed to file 1 motion for extension of
time to file an answer. (Sec. 11, Rule 11).
Under the 2019 Amendments, a motion for
extension to file any pleading, other than an
answer, is prohibited and considered a mere
scrap of paper. (Id.; also see Sec. 12, Rule 15).
The court, however, may allow any other pleading
to be filed after the time fixed by these Rules.
(Sec. 11, Rule 11).
Where the Defendant is a Foreign Private
Juridical Entity
a. Within 30 days after service of summons if
there exists a resident agent. (Sec. 1, Rule
11).
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b. Within 30 days after service of summons if
there is no resident agent but there is an agent
or officer in the Philippines. (Sec. 1, Rule 11).
c. Within 60 days after receipt of summons by
the home office of the foreign private entity,
if there is no resident agent nor agent or officer
in the Philippines and summons is made to the
proper government office which is tasked to
send a copy of such to the home office of the
foreign private entity. (Sec. 2, Rule 11).
If the service of summons was made by
publication, within the time specified in the order
granting leave to serve summons by publication,
which shall not be less than 60 days after notice.
(Sec. 17, Rule 14).
If the service of summons was made by
extraterritorial service to a non-resident defendant,
the period to answer is the time specified by the
court which should not be less than 60 days after
notice. (Id.).
Answer to Amended Complaint
a. Where the plaintiff files an amended complaint
as a matter of right, the defendant shall
answer the same within 30 days after
being served with a copy thereof.
b. Where filing is NOT a matter of right, the
defendant shall answer the amended complaint
within 15 days from notice of the order
admitting the same. An answer earlier filed may
serve as the answer to the amended complaint,
if no new answer is filed. (Sec. 3, Rule 11).
Reply
Reply, if allowed (i.e, answer attaches an
actionable document), may be filed within 15 days
from service of the pleading responded
to. (Sec. 6, Rule 11).
Answer to Supplemental Complaint
A supplemental complaint may be answered
within 20 days from notice of the order
admitting the same, unless a different period is
fixed by the court. (Sec. 7, Rule 11).
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
supplemental answer is filed. (Id.).
Summary of Periods to File Pleadings
PERIOD TO
RECKONED
PLEADING
FILE
FROM
Answer
30 days, unless
otherwise
specified by the
court.
Answer of a a. 30 days, if
defendant
with
agent,
foreign
officer,
or
private
resident agent.
juridical entity
b. 60 days if
summons was
served to a
government
official
designated by
law to receive
the same.
The above shall also apply to the answer to an
amended counterclaim, amended crossclaim,
amended third (fourth, etc.)-party complaint, and
amended complaint-in-intervention. (Id.).
Answer to Counterclaim or Cross-Claim
A counterclaim or cross-claim must be answered
within 20 days from service. (Sec. 4, Rule 11).
Answer to Third-party Complaint
The time to answer a third (fourth, etc.)-party
complaint shall be governed by the same rule as
the answer to the complaint, i.e., 30 days after the
service of summons. (Sec. 5, Rule 11).
Answer
if
summons are
served
through
extraterritorial
service
or
publication
Time specified
by the order of
the court, but
must not be less
than 60 days.
Service
summons
of
a. Service of
summons to
the
agent,
officer
or
resident
agent; or
b. Receipt of
the
foreign
entity,
if
summon
is
served to the
government
official
designated by
law to receive
summons.
Notice of the
extraterritorial
service/
publication of
summons.
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PLEADING
PERIOD TO
FILE
Answer
to 30 days.
amended
complaint as
a matter of
right
Answer
to 15 days.
amended
complaint as
a matter of
discretion of
the court
Answer
to 20 days.
counterclaim
or cross-claim
RECKONED
FROM
Service of the
amended
complaint.
Notice of the
order
admitting the
amended
complaint.
Service of the
counterclaim/
cross-claim.
Answer
to 30 days, unless Service of the
third-party
otherwise
summons.
complaint
specified by the
court.
Reply
15 days.
Service of the
pleading
responded to.
The original copies intended for the court should
be plainly indicated in order to distinguish them
from the copies of the parties. (FERIA, 2013, p.
424).
Failure to comply with the requirement that the
petition be accompanied by a duplicate original or
certified true copy of the judgment, order,
resolution or ruling being challenged is sufficient
ground for the dismissal of said petition. (William
Golangco Construction Corp v. Ray Burton
Development Corp, G.R. No. 163582, Aug. 9,
2010)
When Personal Filing Deemed Made
Filing is deemed made based on the clerk of
court’s endorsement on the pleading of the date
and hour of filing. (Sec. 3, Rule 13).
When a pleading is sent through private courier,
the date of actual receipt of the court is considered
as the date of filing. (Heirs of Miranda v. Miranda,
GR No. 179638, Jul. 8, 2013).
ii. Filing By Registered Mail
Answer
to 20 days, unless Notice of the
supplemental otherwise fixed order
complaint
by the court.
admitting the
supplemental
complaint.
How Filing by Registered Mail is Made
Filing by registered mail is made by sending the
pleading or other court submission to the court via
registered mail. (Sec. 3 (b), Rule 13).
d. Manner Of Filing
It is required that the envelope shall be attached to
the record of the case. (Id.).
Different Manners of Filing
Filing of pleadings and other court submissions
shall be made by:
i. By personal filing;
ii. By registered mail;
iii. By accredited courier;
iv. By electronic mail or other electronic means, as
authorized by the court in places where it is
electronically equipped. (Sec. 3, Rule 13).
i. Personal Filing
How Personal Filing is Made
Personal filing is made by submitting personally
the original thereof, plainly indicated as such, to
the court. (Sec. 3 (a), Rule 13).
When Filing By Registered Mail Deemed Made
The date of the mailing of motions, pleadings,
and other court submissions, and payments or
deposits, shall be deemed as the date of filing,
payment, or deposit as shown by either:
a. The post office stamp on the envelope; or
b. The registry receipt. (Id.).
Thus, the date of filing is determinable from the
above two sources. If the date stamped on one is
earlier than the other, the former may be accepted
as the date of filing. This presupposes, however,
that the envelope or registry receipt and the dates
appearing thereon are duly authenticated before
the tribunal where they are presented.
(Government Service Insurance System v.
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National Labor Relations Commission, G.R. No.
180045, Nov. 17, 2010).
iii. Filing By Accredited Courier
How Filing by Accredited Courier is Made
Filing by accredited courier is made by sending the
pleading or other court submission to the court via
accredited courier. (Sec. 3, Rule 13).
When Filing by Accredited Courier is Made
The date of the mailing of motions, pleadings,
and other court submissions, and payments or
deposits via accredited courier, shall be deemed
as the date of filing, payment, or deposit. (Id.).
iv. Transmittal By Electronic Mail Or Other
Electronic Means
How Filing by Electronic Mail or Other
Electronic Means is Made
Filing by electronic mail or other electronic means
is made by sending the pleading or other court
submission to the court through such manner,
provided:
1. Such mode is authorized by the court; and
2. The court is electronically equipped. (Id.).
When Filing by Electronic Mail or Other
Electronic Means is Deemed Made
In cases of filing by electronic mail or through other
electronic means, the date of electronic
transmission shall be considered as the date of
filing. (Id.).
e. Modes Of Service
Different Modes of Service
Pleadings, motions, notices, orders, judgments,
and other court submissions shall be served:
i. By personal service;
ii. By registered mail;
iii. By substituted service; (Sec. 8, Rule 13).
iv. By accredited courier;
v. By electronic mail, facsimile transmission, or
other electronic means; and
vi. By other means as provided for in international
conventions where the Philippines is a party.
(Sec. 5, Rule 13).
The modes of service are mandatorily intended to
provide a uniform procedure affecting a matter of
public interest which may not be changed by the
parties. Thus, notice given orally in open court as
to the denial of a motion is not sufficient and does
not constitute service. (De Pineda v. Veloira, G.R.
No. L-15145, Jun. 30, 1961).
A party is not considered as having been served
with the judgment merely because he heard the
judge dictating the said judgment in open court; it
is necessary that he be served with a copy of the
signed judgment that has been filed with the clerk
in order that he may legally be considered as
having been served with the judgment. (Ago v.
Court of Appeals, G.R. No. L-17898, 1962)
i. Personal Service
How Personal Service is Made
Through personal service, court submissions may
be served by:
a. Personally delivering a copy to the party or to
the party's counsel;
b. Personally delivering a copy to their authorized
representative named in the appropriate
pleading or motion;
c. Leaving a copy in the office of the party, counsel,
or authorized representative, with his or her
clerk, or any person having charge thereof;
d. Leaving the copy, between the hours of eight in
the morning and six in the evening, at the
party's or counsel's residence, if known, with a
person of sufficient age and discretion residing
therein, if he or she has no office or such office
is unknown.
(Sec. 6, Rule 13).
But when the notice was sent to the lawyer's given
address but did not reach him because he had
moved out without informing the court of his new
location, the service at the old address should be
considered valid. (Vill Transport Service, Inc. v.
Court of Appeals, G.R. No. 76232, Jan. 18, 1991).
When a party's counsel, however, serves a notice
of change in address upon a court, and the court
acknowledges this change, service of papers,
processes, and pleadings upon the counsel's
former address is ineffectual. Service is deemed
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completed only when made at the updated
address. (Gatmaytan v. Dolor, G.R. No. 198120,
2017)
Note: Under service of pleadings, papers, and
other court submissions, leaving copies thereof at
the office of the party, counsel, or authorized
representative or leaving it in his or her residence
to a person of sufficient age or discretion is
considered personal service. Meanwhile, under
service of summons, the same manner of service
is considered as substituted service. (see Sec. 6,
Rule 13 and Sec. 6, Rule 14).
When Personal Service Deemed Completed
Personal service is complete upon actual delivery.
(Sec. 15, Rule 13).
ii. Service By Registered Mail
How Service by Registered Mail is Made
Service by registered mail shall be made by:
1. Depositing the copy in the post office;
2. The deposited copy must be:
i. In a sealed envelope;
ii. 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;
3. The postage fully pre-paid; and
4. An instruction must be given to the postmaster
to return the mail to the sender after 10
calendar days if undelivered.
(Sec. 7, Rule 13).
When Service by Registered Mail Deemed
Completed
Service by registered mail is considered complete,
whichever is earlier, upon:
a. Actual receipt by the addressee; or
b. After 5 calendar days from the date the
addressee received the first notice of the
postmaster. (Sec. 15, Rule 13)
Not only that the notice of the registered mail be
sent but that it should also be delivered to and
received by the addressee. (Vill Transport Service,
Inc. v. Court of Appeals, G.R. No. 76232, Jan. 18,
1991).
There must be clear proof of compliance with the
postal regulations governing the sending and
receipt of the first notice. The mere exhibition in
court of the envelope containing the unclaimed
mail is not sufficient proof that a first notice was
sent. (Barrameda v. Castillo, G.R. No. L-27211,
Jul. 6, 1977).
How Service by Ordinary Mail is Made
If no registry service is available in the locality of
either the sender or the addressee, service may
be done by ordinary mail, following the steps for
service through regular mail. (Sec. 7, Rule 13).
When Service by Ordinary Mail Deemed
Completed
Service by ordinary mail is complete upon the
expiration of 10 calendar days after mailing, unless
the court otherwise provides. (Sec. 15, Rule 13).
Substituted Service
Substituted Service of Pleadings, Papers, and
Other Court Submissions
Substituted service of pleadings, motions, notices,
resolutions, orders and other papers is made by
delivering the copy to the clerk of court provided
that:
1. Service cannot be made by personal service or
by registered mail;
2. Failure is due to the office and place of
residence of the party or his or her counsel
being unknown; and
3. Proof of failure of both personal service and
service by mail is presented to the clerk of
court.
(Sec. 8, Rule 13).
The service is complete at the time of such
delivery. (Id.).
iii. Service By Accredited Courier
How Service by Accredited Courier is Made
Pleadings, motions, notices, orders, judgments,
and other court submissions are served by
accredited courier by depositing the copy thereof
with an accredited courier. (Sec. 5, Rule 13).
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When Service by Accredited Courier Deemed
Completed
Service by accredited courier is complete,
whichever is earlier, upon:
a. Actual receipt by the addressee; or
b. After at least 2 attempts to deliver by the courier
service; or
c. The expiration of five (5) calendar days after the
first attempt to deliver.
(Sec. 15, Rule 13).
v. Service As Provided For In International
Conventions
iv. Service By Electronic Mail, Facsimile
Transmission, Or Other Electronic Means
How Judgments, Final Orders, or Resolutions
are Served
Judgments, final orders, or resolutions shall be
served either:
i. By personally service;
ii. By registered mail;
iii. By accredited courier, upon ex parte motion of
any party in the case courier at his or her
expense; or
iv. By publication, when a party summoned by
publication has failed to appear in the action, at
the expense of the prevailing party.
(Sec. 13, Rule 13).
How Service by Electronic Mail, Facsimile
Transmission, or Other Electronic Means is
Made
Service by electronic means shall be made by
sending an e-mail to the party's or counsel's
electronic mail address, or through other electronic
means of transmission as the parties may agree
on, or upon direction of the court. (Sec. 9, Rule
13).
Service by facsimile shall be made by sending a
facsimile copy to the party's or counsel's given
facsimile number. (Id.).
Note that service through electronic mail, facsimile
transmission, or other electronic means can only
be made if the party concerned consents to
such modes of service. (Id.).
When Service by Electronic Mail, Facsimile
Transmission, or Other Electronic Means
Deemed Completed
Electronic service is complete:
a. At the time of the electronic transmission of the
document; or
b. At the time that the electronic notification, when
available, of service of the document is sent.
(Sec. 15, Rule 13.).
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.
(Id.).
Service can also be effected by means provided
for in international conventions provided that the
Philippines is a party thereof. (Sec. 5, Rule 13.).
f. Service Of Judgments, Final Orders Or
Resolutions; Service Of Court-Issued
Orders And Other Documents
Final judgments or orders are appealable. Hence,
it is necessary that they be served personally or by
registered mail (save for accredited courier or
publication) in order that the period for taking an
appeal may be computed. (FERIA, 2013, p. 429).
If a defendant who had been served with
summons subsequently absconds and his present
address is unknown, the court may order that
judgments, final orders, or resolutions be served
upon him by publication. (Id.).
How
Court-issued Orders and Other
Documents are Served
Aside from the various modes of service allowed
by the Rules on service of judgments, final orders,
or resolutions, other court-issued orders or
documents may be electronically served to all
the parties in the case which shall have the same
effect and validity as provided herein. (Sec. 18,
Rule 13).
A paper copy of the order or other document
electronically served shall be retained and
attached to the record of the case. (Id.).
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g. Conventional Service Or Filing Of Orders,
Pleadings, And Other Documents
When Conventional Service is Required
The following orders, pleadings, and other
documents must be served or filed personally or
by registered mail when allowed:
1. Initiatory pleadings and initial responsive
pleadings, such as an answer;
2. Subpoena, protection orders, and writs;
3. 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
4. Sealed and confidential documents or records.
(Sec. 14, Rule 13).
The above submissions may not be filed
electronically,
unless
with
the
express
permission of the court. (Id.).
h. When Service Is Deemed Complete
Note: the discussions on Completeness of Service
is placed together with the Modes of Service.
i. Proof Of Filing And Service
Proof of Filing, General Rule
As a general rule, the filing of a pleading or any
other court submission shall be proved by its
existence in the record of the case. (Sec. 16,
Rule 13).
Thus, the various proofs of filing contemplate a
situation where the pleading or court submission is
not in the record. (Id.).
Proof of Personal Filing
If the pleading or any other court submission is
claimed to have been filed personally, the filing
shall be proven by the written or stamped
acknowledgment of its filing by the clerk of
court on a copy of the pleading or court
submission. (Sec. 16 (a), Rule 13).
Proof of Filing by Registered Mail
If the pleading or any other court submission was
filed by registered mail, the filing shall be proven
by:
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1. The registry receipt; and
2. The affidavit of the person who mailed it,
containing a full statement of:
i. The date and place of deposit of the mail in
the post office;
ii. That the document is in a sealed envelope;
iii. That the mail is addressed to the court;
iv. That the postage fully prepaid; and
v. That it is with instructions to the postmaster
to return the mail to the sender after 10
calendar days if not delivered.
(Sec. 16 (b), Rule 13).
Proof of Filing by Accredited Courier
If the pleading or any other court submission was
filed through an accredited courier service, the
filing shall be proven by:
1. An affidavit of service of the person who
brought the pleading or other document to the
service provider; and
2. The courier's official receipt and document
tracking number.
(Sec. 16 (c), Rule 13).
Proof of Filing by Electronic Mail
If the pleading or any other court submission was
filed by electronic mail, the same shall be proven
by:
1. An affidavit of electronic filing of the filing
party; and
2. A paper copy of the pleading or other
document transmitted or a written or
stamped acknowledgment of its filing by the
clerk of court.
(Sec. 16 (d), Rule 13).
If the paper copy sent by electronic mail was filed
by registered mail, the rules on proof of filing
by registered mail shall apply. (Id.).
Proof of Filing by Other Authorized Electronic
Means
If the pleading or any other court submission was
filed through other authorized electronic means,
the same shall be proven by:
1. An affidavit of electronic filing of the filing
party; and
2. A copy of the electronic acknowledgment of
its filing by the court.
(Sec. 16 (e), Rule 13).
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Proof of Service
When service of notice is an issue, the rule is that
the person alleging that the notice was served
must prove the fact of service. The burden of
proving notice rests upon the party asserting its
existence. (Republic v. Wee, G.R. No. 147212,
Mar. 24, 2006).
Proof of Personal Service
Proof of personal service shall consist of:
a. A written admission of the party served; or
b. The official return of the server; or
c. The affidavit of the party serving, containing a
statement of the date, place, and manner of
service.
(Sec. 17, Rule 13).
In one case, the Court held that the CA correctly
dismissed the petitioner's appeal on the ground of,
among others, non-attachment of the affidavit of
service to its petition, as required by Rule 13,
Section 13 of the Rules of Court (now Sec. 17,
Rule 13). The rule obliges litigants to attach an
affidavit of service to their petitions/appeals. While
this is required merely as proof that service has
been made on the other party, it is nonetheless
essential to due process and the orderly
administration of justice. (Ang Biat Huan Sons
Industries, Inc. v. Court of Appeals, G.R. No.
154837, Mar. 22, 2007).
If the written admission of the party served is not
obtained, an affidavit is necessary to prove
service. A mere certificate is not enough. (FERIA,
2013, p. 435).
Proof of Service by Registered Mail
Proof of service by registered mail shall be made
by:
1. The affidavit stating compliance with the rules
on service by registered mail, to wit:
i. That the copy was deposited in the post
office;
ii. That the deposited copy must be:
(i) In a sealed envelope;
(ii) 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;
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iii. That the postage was fully pre-paid; and
iv. An instruction was given to the postmaster
to return the mail to the sender after 10
calendar days if undelivered. (see Sec. 7,
Rule 13); and
2. The registry receipt issued by the mailing office.
(Sec. 17 (b), Rule 13).
The registry return card shall be filed
immediately upon its receipt by the sender, or
in lieu thereof, the unclaimed letter AND the
certified or sworn copy of the notice given by
the postmaster to the addressee. (Id.).
In civil cases, service made through registered
mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person mailing
of facts showing compliance with Section 7 of Rule
13. (Ting v. Court of Appeals, G.R. No. 140665,
Nov. 13, 2000).
Proof of Service by Ordinary Mail
Proof of service by ordinary mail shall consist of an
affidavit of the person mailing stating the facts
showing compliance with the rule on service for
ordinary mail (Sec. 13 (a), Rule 13; see also the
affidavit requirement for Proof of Service by
Registered Mail; Sec. 7, Rule 13).
Proof of Service by Accredited Courier
Proof of service by accredited courier shall be
made by:
1. An affidavit of service executed by the person
who brought the pleading or paper to the
service provider; and
2. The courier's official receipt or document
tracking number.
(Sec. 17 (c), Rule 13).
Proof of Service by Electronic Mail, Facsimile,
or Other Authorized Electronic Means
Proof shall be made by:
1. An affidavit of service executed by the person
who sent the e-mail, facsimile, or other
electronic transmission; and
2. A printed proof of transmittal.
(Sec. 17 (d), Rule 13).
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Notice Of Lis Pendens
Nature of Notice of Lis Pendens
Lis pendens, which literally means pending suit,
refers to the jurisdiction, power or control which a
court acquires over property involved in a suit,
pending the continuance of the action, and until
final judgment. Its notice is an announcement to
the whole world that a particular property is in
litigation and serves as a warning that one who
acquires an interest over said property does so at
his own risk or that he gambles on the result of the
litigation over said property. (Spouses Romero v.
Court of Appeals, G.R. No. 142406, May 16,
2005).
The purposes of lis pendens are:
1. To protect the rights of the party causing the
registration of the lis pendens; and
2. To advise third persons who purchase or
contract on the subject property that they do so
at their peril and subject to the result of the
pending litigation. (Heirs of Lopez, Sr. v.
Enriquez, G.R. No. 146262, Jan. 21, 2005).
Actions Where Lis Pendens is Appropriate
Notice of lis pendens may be applied for in actions
affecting the title or the right of possession of real
property. (Sec. 19, Rule 13).
A notice of lis pendens may also deal with the use
or occupation of a property and to suits seeking to
establish a right to, or an equitable estate or
interest in, a specific real property; or to enforce a
lien, a charge or an encumbrance against it. (Heirs
of Lopez, Sr. v. Enriquez, G.R. No. 146262, Jan.
21, 2005).
But the doctrine of lis pendens has no application
to a proceeding in which the only object sought is
the recovery of a money judgment, though the title
or right of possession to property be incidentally
affected. (Atlantic Erectors Inc. v. Herbal Cove
Realty Corp., G.R. No. 148568, Mar. 20, 2003).
Specifically, a notice of lis pendens is appropriate
in the following cases:
1. An action to recover possession of real estate;
2. An action to quiet title thereto;
3. An action to remove clouds thereon;
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4. An action for partition; and
5. Any other proceedings of any kind in Court
directly affecting the title to the land or the use
or occupation thereof or the buildings thereon.
(Magdalena Homeowners Association, Inc. v.
Court of Appeals, G.R. No. 60323, Apr. 17,
1990).
But it has no application in the following cases:
1. Preliminary attachments;
2. Proceedings for the probate of wills;
3. Levies on execution;
4. Proceedings for administration of estate of
deceased persons; and
5. Proceedings in which the only object is the
recovery of a money judgment.
(Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262,
Jan. 21, 2005).
How to Record Notice of Lis Pendens
In an appropriate action, the plaintiff or defendant
seeking affirmative relief, may record a notice of
the pendency of the action with the registry of
deeds of the province in which the property is
situated. (Sec. 19, Rule 13).
The said notice shall contain:
1. The names of the parties; and
2. The object of the action or defense;
3. A description of the property in that province
affected thereby.
(Id.).
Only the parties to a case can request for the
recording of the pendency of an action on the title
of the subject property. Applications for notice of
lis pendens filed by persons claiming interest over
the property by have no standing in the case must
be denied. (Heirs of Lopez, Sr. v. Enriquez, G.R.
No. 146262, Jan. 21, 2005).
When Notice of Lis Pendens Takes Effect
Only from the time of filing such notice for record
shall a purchaser, or encumbrancer of the property
affected thereby, be deemed to have constructive
notice of the pendency of the action, and only of
its pendency against the parties designated by
their real names. (Sec. 19, Rule 13).
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Cancellation of Notice of Lis Pendens
The notice of lis pendens hereinabove mentioned
may be cancelled only upon order of the court,
after proper showing that the notice is:
a. For the purpose of molesting the adverse party;
or
b. Not necessary to protect the rights of the party
who caused it to be recorded. (Id.).
In one case, the Republic, through the Philippine
Commission on Good Government (PCGG),
sought to recover the ill-gotten wealth of the
respondents. The Republic caused the annotation
of a notice of lis pendens over the respondents’
title over the Cabuyao property. The respondents
then moved for the cancellation of the notice of lis
pendens, which the Sandiganbayan granted, on
the ground that the Cabuyao property was not the
subject of this case; thus, the notice of lis pendens
was not necessary to protect the Republic’s rights.
In reversing the Sandiganbayan, the SC ruled that
the Sandiganbayan erred in cancelling the notice
of lis pendens. The Republic actually sought to
include the Cabuyao property in the present action
through an amended complaint. Nonetheless, the
Sandiganbayan did not admit the amended
complaint because it found that the pleading failed
to comply with the requirement that the
amendments in a pleading be indicated by
appropriate marks. However, E.O. 14 specifically
states that the technical rules of procedure and
evidence shall not be strictly applied to the civil
cases filed under it so that the efforts of the PCGG
will not be hampered (Republic v. Sandiganbayan,
G.R. No. 195295, Oct. 5, 2016).
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e. Correcting a mistaken or inadequate description
in any other respect. (Id.).
Compared to Rule 129, Sec. 4
Section 4 of Rule 129 contains the rule prohibiting
a party from contradicting his judicial admission
unless it is shown that such admission is made
through palpable mistake or no such admission is
made.
Matters involving the amendment of pleadings are
primarily governed by the pertinent provisions of
Rule10 and not by Section 4 of Rule 129 of the
Rule of Court. Hence, allegations (and
admissions) in a pleading—even if not shown to
be made through "palpable mistake"—can still be
corrected or amended provided that the
amendment is sanctioned under Rule 10 of the
Rules of Court. (Yujuico v. United Resources
Asset Management, G.R. No. 211113, Jun. 29,
2015).
Two Types of Amendments
a. Amendments as a matter of right (Sec. 2, Rule
10);
b. Amendments by leave of court/matter of
discretion (Sec. 3, Rule 10).
a. Amendment As A Matter Of Right
When Amendment is a Matter of Right
An amendment is considered as a matter of right
if it is made at any time before a responsive
pleading is served or, in the case of a reply, at
any time within 10 calendar days after it is
served. (Sec. 2, Rule 10).
8. AMENDMENT
Reason for Allowing Amendments
Amendments are permitted so that the actual
merits of the controversy may speedily be
determined, without regard to technicalities, in the
most expeditious and inexpensive manner. (Sec.
1, Rule 10).
How Pleadings are Amended
a. Adding or striking out an allegation of a party;
b. Adding or striking out the name of a party;
c. Correcting a mistake in the name of a party;
d. Correcting a mistaken or inadequate allegation;
In amendments as a matter of right, there is no
need to file a motion for leave to amend the
pleading. But a party may amend his pleading
ONCE as a matter of right. Subsequent
amendments must be WITH LEAVE of court. (Id.).
Section 2 Rule 10 refers to an amendment made
before the trial court and not to amendments
before the Court of Appeals. The Court of Appeals
is vested with jurisdiction to admit or deny
amended petitions filed before it. (Navarro v. Vda
De Taroma, G.R. No. 160214, Dec. 16, 2005).
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Motion to Dismiss Not a Responsive Pleading
A motion to dismiss is not the responsive pleading
contemplated by the Rule. Plaintiff may file an
amended complaint even after the original
complaint was ordered dismissed, provided that
the order of dismissal is not yet final. (Bautista v.
Maya-Maya Cottages Inc., G.R. No. 148361, Nov.
29, 2005).
Responsive pleadings are those which seek
affirmative relief and/or set up defenses, like an
answer. A motion to dismiss is not a responsive
pleading for purposes of Section 2 of Rule 10.
(Marcos-Araneta v. CA, G.R. No. 154096, Aug. 22,
2008).
Amendment to Correct Jurisdictional Defect
When Made as a Matter of Right
Pleader has a right to amend his complaint before
a responsive pleading is served even if it is to
correct a jurisdictional defect. (RIANO, 2019, p.
377).
Mandamus Applicable to Compel Trial Court to
Admit Amended Pleading as a Matter of Right
As the plaintiffs have the right to amend their
complaint, it is the correlative duty of the
respondent judge to accept the amended
complaint; in refusing to permit the amendment of
the plaintiffs' complaint, the judge unlawfully
neglected to perform an act which the law
specifically enjoins as a duty resulting from his
office, or excluded the plaintiffs from the
enjoyment of a right to which they are entitled.
Thus, mandamus will prosper provided that there
is no other plain, speedy and adequate remedy in
the ordinary course of law. (Breslin v. Luzon
Stevedoring Co., G.R. No. L-3346 Sep. 29, 1949).
When New Service of Summons is Required
When defendants have not yet appeared in court
and no summons has been validly served, new
summons for the amended complaint must be
served on them. It is not the change of cause of
action that gives rise to the need to serve another
summons for the amended complaint, but rather
the acquisition of jurisdiction over the persons of
the defendants. (Vlason Enterprises v. CA, G.R.
No. 121662-64, Jul. 6, 1999)
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b. Amendments By Leave Of Court
When Leave of Court is Required for Amending
Pleadings
Leave of court is required for an amendment
when:
1. The amendment is made after service of a
responsive pleading; AND
2. It involves a substantial amendment.
(Sec. 3, Rule 10).
Under Sec. 3, Rule 10, the amendment may
substantially alter the cause of action or the
defense, provided that it is not intended for delay
and will serve the higher interest of substantial
justice. (Philippine Ports Authority v. William
Gothong & Aboitiz, Inc., G.R. No. 158401, Jan. 28,
2008).
Requisites for Amendment by Leave of Court
1. There must be a motion filed in court;
2. Notice to the adverse party;
3. Opportunity to be heard afforded to the adverse
party; and
Motion must not be intended:
i. To cause delay;
ii. To confer jurisdiction to the court; or
iii. To cure a pleading which stated no cause of
action from the beginning.
(Sec. 3, Rule 10).
The defect of lack of cause of action at the
commencement of the suit cannot be cured by the
accrual of a cause of action during the pendency
of the case. There must be some cause of action
at the commencement of the suit. (Swagman
Hotels & Travel v. CA, G.R. No. 161135. Apr. 8,
2005).
No Amendment Necessary to Conform to or
Authorize Presentation of Evidence
When issues not raised by the pleadings are tried
with the express or implied consent of the parties,
they shall be treated in all respects as if they had
been raised in the pleadings. (Sec 5, Rule 10).
Under the 2019 Amendments, no amendment of
such pleadings is necessary to conform them with
the evidence. (Id.).
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Prior to the 2019 Amendments, the Rules
permissively allow parties to amend the pleadings
to conform them to the evidence presented.
Nevertheless, in both cases, failure to amend does
not affect the result of the trial of such issues not
formerly raised.
But the curing effect under Sec. 5, Rule 10 is
applicable only if a cause of action in fact exists at
the time the complaint is filed and evidence
showing such cause of action was presented
subsequently. (Swagman Hotels & Travel v. CA,
G.R. No. 161135. Apr. 8, 2005).
c. Formal Amendment
A defect in the designation of the parties and other
clearly CLERICAL or TYPOGRAPHICAL errors
may be summarily corrected by the court at ANY
stage of the action, at its initiative or on motion,
provided no prejudice is caused thereby to the
adverse party. (Sec. 4, Rule 10).
d. Effect Of Amended Pleading
Effects of Amended Pleading on the Original
Pleading
An amended pleading supersedes the pleading
that it amends. (Sec. 8, Rule 10).
When a pleading is amended, the original ceases
to perform any further function as a pleading and
the case stands for trial on the amended pleading
only. (Ascano-Cupino v. Pacific Rehouse
Corporation; G.R. No. 205113, Aug. 26, 2015).
Effect of Amendments in Relation to Statute of
Limitations
But
for
purposes
of
determining
the
commencement of a suit, the original complaint is
deemed abandoned and superseded by the
amended complaint only if the amended complaint
introduces a new or different cause of action or
demand. In such a case, it is the actual filing in
court that controls and not the date of the formal
admission of the amended pleading. (Verzosa v.
Court of Appeals, G.R. Nos. 119511-13, Nov.r 24,
1998).
REMEDIAL LAW
Effect of the Amended Pleading on
Admissions in the Original Pleading
Admissions in superseded pleadings are not
carried over in the amended pleadings unless
contained in the amended pleading and claims or
defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. (Sec.
8, Rule 10).
Nonetheless, admissions in superseded pleadings
may be offered in evidence against the pleader,
(Id.).
Under the Rules, pleadings superseded or
amended disappear from the record, lose their
status as pleadings and cease to be judicial
admissions. (Ching v. Court of Appeals, G.R. No.
110844, Apr. 27, 2000).
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. (Torres v. Court of
Appeals, G.R. No. L-37420, L-37421, Jul. 31,
1984).
Admissions in Original Pleadings
Admissions made in the original pleadings are
considered as EXTRAJUDICIAL admissions.
However, admissions in superseded pleadings
may be received in evidence against the pleader
as long as they are formally offered in evidence.
(Rule 10, Sec. 8)
Effect of Amendment of Complaint on the
Requisite of Service of Summons
If new causes of action are alleged in the amended
complaint filed BEFORE the defendant has
appeared in court, another summons must be
served on the defendant with the amended
complaint.
However, if the defendants have ALREADY
APPEARED before the court by virtue of summons
in the original complaint (e.g., by filing an entry of
appearance or motion for extension of time to file
a responsive pleading), the amended complaint
may be served upon them without need of another
summons EVEN IF new causes of action are
alleged.
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e. Supplemental Pleadings
Nature of Supplemental Pleadings
Supplemental pleadings set forth the transactions,
occurrences, or events which have happened
since the date of the pleading sought to be
supplemented. (Sec. 6, Rule 10).
It is but a continuation of the complaint. Its usual
office is to set up new facts which justify, enlarge
or change the kind of relief with respect to the
same subject matter as the controversy referred to
in the original complaint. (Chan v. Chan, G.R. No.
150746, Oct. 15, 2008).
A supplemental pleading assumes that the original
pleading is to stand and that the issues joined with
the original pleading remained an issue to be tried
in the action. (Young v. Spouses Sy, G.R. Nos.
157745, Sep. 26, 2006).
How to File Supplemental Pleading
Filing of a supplemental pleading must be:
1. Upon motion of the party;
2. With reasonable notice to the other party;
(Sec. 6, Rule 10).
Introduction of a New Cause of Action in
Supplemental Pleading
When the cause of action stated in the
supplemental complaint is different from the
causes of action mentioned in the original
complaint, the court should not admit the
supplemental complaint; the parties cannot
introduce new and independent causes of action.
(Leobera v. CA; G.R. No. 80001; Feb. 27, 1989).
But the fact that the supplemental pleading
technically states a new cause of action should not
be a bar to its allowance but only a factor to be
considered by the court in the exercise of its
discretion; and of course, a broad definition of
"cause of action" should be applied here as
elsewhere. (Young v. Spouses Sy, G.R. Nos.
157745, Sep. 26, 2006).
In one case, the plaintiff filed a supplemental
pleading to include the payment of rental in arrears
as well as damages due to the subsequent acts of
the defendant of depriving the plaintiff of its rentals
from a potential lessee pending its original suit of
annulment of extrajudicial foreclosure and loan
contracts. The court held that the new causes of
action raised in the supplemental complaint are
germane to, and are in fact, intertwined with the
cause of action of nullification of the real estate
mortgage and the extrajudicial foreclosure thereof,
as well as the sale at public auction. (Planters
Development Bank v. LZK Holdings &
Development Corp., G.R. No. 153777, Apr. 15,
2005).
Answer to Supplemental Pleading Not
Mandatory
The adverse party MAY plead thereto within 10
days from notice of the order admitting the
supplemental pleading. (Sec. 6, Rule 10).
Since it is not mandatory to file an answer, the
court cannot declare respondent in default simply
because the latter opted not to file an answer to
the supplemental petition. (Chan v. Chan, G.R.
No. 150746, Oct. 15, 2008).
Filing Fees for a Supplemental Complaint
Additional filing fees are due to a supplemental
complaint and it is not for the party or the trial court
to waive such payment. Failure to pay filing fees
for supplemental complaint is fatal only for the
supplemental complaint. The original complaint is
not affected. (Do-All Metals Industries Inc., v.
Security Bank, G.R. No. 176339, Jan. 10, 2011)
Amended vs. Supplemental Pleading
AMENDED
SUPPLEMENTAL
PLEADING
PLEADING
Refers
to
facts Refers to facts arising
existing at the time of after the filing of the
the commencement original pleading.
of the action.
Takes the place of the Taken together with
original pleading.
the original pleading.
Can be made as a
matter of right when
no
responsive
pleading has yet been
filed.
Always with leave of
court.
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When an amended
pleading is filed, a
new copy of the entire
pleading must be
filed.
An answer must be
filed by the defendant;
but an answer earlier
filed may serve as the
answer
to
the
amended pleading.
A
supplemental
pleading does not
require the filing of a
new copy of the entire
pleading.
The filing of an
answer
is
not
mandatory.
G. SUMMONS
1. NATURE AND PURPOSE OF SUMMONS
Nature of Summons
Summons is a writ by which the defendant is
notified of the action brought against him/her.
Service of such writ is the means by which the
court may acquire jurisdiction over his/her person.
(Cano-Gutierrez v. Gutierrez, G.R. No. 138584,
2000)
Purpose of Summons
Its purpose is two-fold: to acquire jurisdiction
over the person of the defendant and to notify
the defendant that an action has been commenced
so that he may be given an opportunity to be
heard on the claim against him. (RIANO, 2019, p.
391).
The service of summons is a vital and
indispensable ingredient of due process and
compliance with the rules regarding the service of
the summons is as much an issue of due process
as it is of jurisdiction. (Borlongan v. Banco de
Oro, G.R. Nos. Apr. 5, 2017).
Without service of summons, or when summons
are improperly made, both the trial and the
judgment, being in violation of due process, are
null and void, unless the defendant waives the
service of summons by voluntarily appearing and
answering the suit. (Guiguinto Credit Cooperative,
Inc. v. Torres, G.R. No. 170926, Sep. 15, 2006).
REMEDIAL LAW
a. In Relation To Actions In Personam, In
Rem, And Quasi In Rem
Summons in Actions In Personam
Where the action is in personam, that is, one
brought against a person on the basis of her
personal liability, jurisdiction over the person of the
defendant is necessary for the court to validly
try and decide the case. Service of summons
upon the defendants is essential in order for the
court to acquire jurisdiction over their persons.
(Velayo-Fong v. Spouses Velayo, G.R. No.
155488, Dec. 6, 2006).
In actions in personam, the judgment is for or
against a person directly. Jurisdiction over the
parties is required in actions in personam because
they seek to impose personal responsibility or
liability upon a person. (Frias v. Alcayde, G.R. No.
194262, Feb. 28, 2018).
Knowledge of the Defendant of the Action
Cannot Replace Service of Summons
Jurisdiction of the court over the person of the
defendant or respondent cannot be acquired
notwithstanding his knowledge of the pendency of
a case against him unless he was validly served
with summons. Such is the important role a valid
service of summons plays in court actions. (Frias
v. Alcayde, G.R. No. 194262, Feb. 28, 2018).
Deceased Person Cannot be Validly Served
with Summons
The lower court's judgment against the deceased
is void for lack of jurisdiction over his person.
Deceased was not, and could not have been,
validly served with summons. He had no more civil
personality. His juridical capacity, which is the
fitness to be the subject of legal relations, was lost
through death.” (Dumlao v. Quality Plastic
Products Inc., G.R. No. L-27956, Apr. 30, 1976)
Summons in Actions In Rem and Quasi In Rem
An action in rem is an action against the thing itself
instead of against the person. Meanwhile, an
action quasi in rem is where an individual is named
as defendant and the purpose of the proceeding is
to subject his interest therein to the obligation or
loan burdening the property. This is so inasmuch
as, in in rem and quasi in rem actions, jurisdiction
over the person of the defendant is not a
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prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction
over the res. (Banco Do Brasil v. Court of
Appeals, G.R. Nos. 121576-78, Jun. 16, 2000).
Nevertheless, in a proceeding in rem or quasi in
rem, summons must be served upon the
defendant not for the purpose of vesting the court
with jurisdiction but merely for satisfying the due
process requirements. (Gomez v. CA, G.R. No.
127692, Mar. 10, 2004)
Jurisdiction over the res is acquired either (a) by
the seizure of the property under legal process,
whereby it is brought into actual custody of the law;
or (b) as a result of the institution of legal
proceedings, in which the power of the court is
recognized and made effective. (Alba v. Court of
Appeals, G.R. No. 164041, Jul. 29, 2005).
Acquiring Jurisdiction Over the Res Instead of
the Person
If the defendant is a non-resident, who remains
beyond the range of the personal process of the
court and he refuses to come in voluntarily, the
court never acquires jurisdiction over the person at
all. Here the property itself is in fact the sole thing
which is impleaded and is the responsible object
which is the subject of the exercise of judicial
power. It follows that the jurisdiction of the court in
such case is based exclusively on the power
which, under the law, it possesses over the
property. Upon acquisition of jurisdiction over the
property, the court can validly hear the case. (El
Banco Español-Filipino v. Palanca, G.R. No. L11390, Mar. 26, 1918).
But it does not mean that notice or summons to the
parties interested is not necessary. Due process
still requires that they be notified and given an
opportunity to defend their interest. (Gomez v. CA,
G.R. No. 127692, Mar. 10, 2004)
But in an action in rem or quasi in rem, where the
defendant appears, the cause becomes mainly an
action in personam. (El Banco Español-Filipino v.
Palanca, G.R. No. L-11390, Mar. 26, 1918).
REMEDIAL LAW
b. When Summons Are Issued
The court shall direct the clerk of court to issue the
corresponding summons to the defendants within
5 calendar days from:
1. Receipt of the initiatory pleading; and
2. Proof of payment of the required legal fees.
(Sec. 1, Rule 14).
But the court will not issue the summons, and
instead dismiss the case, if the complaint, on its
face, shows:
1. That the court has no jurisdiction over the
subject matter;
2. That there is another action pending between
the same parties for the same cause;
3. That the action is barred by a prior judgment;
4. That the action is barred by the statute of
limitations. (Id., Sec. 1, Rule 9).
Within 30 calendar days from issuance of
summons by the clerk of court and receipt thereof,
the sheriff or process server, or person authorized
by the court, shall complete its service. (Sec. 20,
Rule 14).
c. Content Of Summons
Contents of and Attachments to the Summons
The summons shall contain:
1. The name of the court and the names of the
parties to the action;
2. When authorized by the court upon ex parte
motion, an authorization for the plaintiff to
serve summons to the defendant;
3. A direction that the defendant answer within
the time fixed by these Rules; and
4. A notice that unless the defendant so
answers, plaintiff will take judgment by default
and may be granted the relief applied for. (Sec. 2,
Rule 14).
Attached to the summons are:
i. Copy of the complaint; and/or
ii. Order for appointment of guardian ad litem, if
any. (Id.).
d. DUTY OF COUNSEL
Under the 2019 Amendments, where the counsel
for the defendant makes a special appearance to
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question the validity of a summons invalidly served
on his client, such counsel shall be deputized by
the court to serve the summons to his or her client.
(Sec. 13, Rule 14).
e. Return
Filing and Service of Return of Personal
Service of Summons
Within 5 calendar days from service of summons,
the server shall file with the court and serve a copy
of the return to the plaintiff's counsel, either:
a. By personal service;
b. By registered mail; or
c. By electronic means authorized by the Rules.
(Sec. 20, Rule 14).
Filing and Service of Return of Substituted
Service of Summons
The return of substituted service of summon shall
be filed and served in the same manner as that of
personal service of summons. (Id.).
REMEDIAL LAW
2. VOLUNTARY APPEARANCE
As a general rule, defendant's voluntary
appearance in the action shall be equivalent to
service of summons, and filing a motion to dismiss
constitutes voluntary appearance, except on the
ground of lack of jurisdiction over the person
of the defendant. (Sec. 23, Rule 14).
Note: Under the 2019 Amendments, a motion to
dismiss is a prohibited pleading unless it is based
on the grounds of: lack of jurisdiction over the
subject matter, res judicata, litis pendentia, or
prescription. (Sec. 12, Rule 15).
Even if jurisdiction was not originally acquired due
to defective service of summons, the court
acquires jurisdiction over his person by his act of
subsequently filing a motion for reconsideration.
(Soriano v. Palacio, G.R. No. L-17469, Nov. 28,
1964)
3. WHO MAY SERVE SUMMONS
In addition, for substituted service, the return shall
state:
1. The impossibility of prompt personal service
within a period of 30 calendar days from issue
and receipt of summons;
2. The date and time of the 3 attempts on at 2
two different dates to cause personal service
and the details of the inquiries made to
locate the defendant residing thereat; and
3. The name of either the:
a. Person at least 18 years of age and of
sufficient discretion residing thereat;
b. Competent person in charge of the
defendant's office or regular place of
business;
c. Officer of the homeowners' association or
condominium corporation or its chief
security officer in charge of the community
or building where the defendant may be
found. (Id.).
Non-service or irregular service of summons may
be a ground for dismissal for lack of jurisdiction
over the person of the defending party.
Who May Serve Summons
The summons may be served by:
a. Sheriff;
b. Sheriff’s deputy; or
c. Other proper court officers;
d. Plaintiff, upon authorization of the court in cases
where:
a. Failure of the above to serve the summons,
in which case it shall be served together
with the sheriff;
b. Summons is to be served outside the court’s
judicial region;
(Rule 14, Sec. 3);
e. Counsel of the defendant, whereby he makes a
special appearance to contest the improper
service of summons and was thereafter
deputized by the court to serve summons.
(Sec. 13, Rule 14).
Plaintiff’s Duties When Authorized to Serve
Summons
If the authorized plaintiff is a juridical entity, it shall
notify the court, in writing:
1. That it is in fact a juridical entity;
2. The name of its duly authorized representative;
Attached to the notice is the board resolution or
secretary
certificate
stating
that
such
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representative is duly authorized to serve the
summons on behalf of the plaintiff. (Sec. 3, Rule
14).
If summons is returned without being served on
any or all the defendants, the court shall order the
plaintiff to cause the service of summons by other
means available under the Rules. And if, despite
the order, the plaintiff still fails to serve the
summons, the case shall be dismissed without
prejudice. (Id.).
The plaintiff, who is authorized to serve the
summons, must not misrepresent that he had
duly served the summons defendant. If it is proven
that he committed such misrepresentation:
1. The case shall be dismissed with prejudice;
2. The proceedings shall be nullified; and
3. The plaintiff shall be appropriately sanctioned.
(Id.).
Validity of Summons
Under the 2019 Amendments, summons shall
remain valid until duly served, unless it is recalled
by the court. (Sec. 4, Rule 14). Hence, there is no
need to reissue an alias summons upon the failure
of the sheriff to serve the summons.
Alias Summons
Upon motion by the plaintiff, the court may issue
an alias summons in case of loss or destruction
of the summons. (Id.).
One issued by the clerk of court on demand of the
plaintiff when the original summons was returned
without being served on any or all of the
defendants, or when summons has been lost.
When issued, it supersedes the first summons.
4. PERSONAL SERVICE (SERVICE IN
PERSON ON DEFENDANT)
Personal Service of Summons – How Made
Personal service of summons is made by:
a. Handing a copy thereof to the defendant in
person and informing the defendant that he
or she is being served; or,
b. 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 (tendering
the summons). (Sec. 6, Rule 14).
The service of summons must be completed within
30 calendar days from issuance of summons by
the clerk of court and receipt thereof by the sheriff
or process server, or person authorized by the
court. (Sec. 20, Rule 14).
Summons may be served personally wherever the
defendant is found within the Philippines.
(Sansio Philippines Inc. v Sps, Mogol, G.R. No.
177007, Jul. 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 (now Section 5) 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.
(Spouses Manuel v. Ong, G.R. No. 205249, 2014)
Against a NONRESIDENT, jurisdiction over the
defendant is acquired by service upon his person
while said defendant is within the Philippines. If
the non-resident defendant is not in the
Philippines, and the action is an action in
personam, Philippine courts cannot acquire
jurisdiction over the defendant, unless he
voluntarily appears in court. (Macasaet v. Co, G.R.
No. 156759, Jun. 5, 2013).
SERVICE IN
PERSON ON
DEFENDANT (Rule
14, Sec. 5)
Applies
only
to
summons
PERSONAL
SERVICE (Rule 13,
Sec. 6)
Applies
to
all
pleadings
(except
complaint),
judgments,
orders,
and other papers and
court submissions
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SERVICE IN
PERSON ON
DEFENDANT (Rule
14, Sec. 5)
1. By handing a copy
thereof
to
the
defendant in person;
2. If he/she refuses to
receive and sign for it,
summons will be
tendered by server to
defendant.
PERSONAL
SERVICE (Rule 13,
Sec. 6)
1.
By
delivering
personally a copy to
the party or his
counsel, or by leaving
it in his office with his
clerk or with a person
having
charge
thereof;
2. If no person is
found in his office, or
his office is not
known, or he has no
office, then by leaving
the copy, between the
hours of eight in the
morning and six in the
evening, at the party's
or
counsel's
residence, if known,
with a person of
sufficient age and
discretion
then
residing therein.
Note: Under service of pleadings, papers, and
other court submissions, leaving copies thereof at
the office of the party, counsel, or authorized
representative or leaving it in his or her residence
to a person of sufficient age or discretion is
considered personal service. Meanwhile, under
service of summons, the same manner of service
is considered as substituted service. (see Sec. 6,
Rule 13 and Sec. 6, Rule 14).
Personal Service as the Preferred Mode
Personal service of summons is the preferred
mode. The rules on the service of summons other
than by personal service may be used only as
prescribed and only in the circumstances
authorized by statute. Thus, the impossibility of
prompt personal service must be shown.
(Borlongan v. Banco de Oro, G.R. Nos. Apr. 5,
2017).
REMEDIAL LAW
Duty of the Sheriff Serving the Summons
Sheriffs are asked to discharge their duties on the
service of summons with due care, utmost
diligence, and reasonable promptness and speed
so as not to prejudice the expeditious dispensation
of justice. Thus, they are enjoined to try their best
efforts to accomplish personal service on
defendant.
On the other hand, since the
defendant is expected to try to avoid and evade
service of summons, the sheriff must be
resourceful, persevering, canny, and diligent in
serving the process on the defendant.
(Constantino Pascual v. Lourdes Pascual, G.R.
No. 171916, 2009)
5. SUBSTITUTED SERVICE
When Substituted Service Can Be Made
Substituted service can be made if the defendant
cannot be served personally for:
1. At least 3 attempts; and
2. On 2 different dates. (Sec. 6, Rule 14).
There is failure of service after unsuccessful
attempts to personally serve the summons on the
defendant in his or her address indicated in the
complaint. (Sec. 4, Rule 14). The service of
summons must be completed within 30 calendar
days from issuance of summons by the clerk of
court and receipt thereof by the sheriff or process
server, or person authorized by the court. (Sec. 20,
Rule 14).
Under the 2019 Amendments, the Court’s ruling in
Manotoc vs. CA as regards the number of
unsuccessful attempts of personal service of
summons before resorting to substituted service,
as well as the specific details required in the
return, are now codified under Secs. 6 and 20 of
Rule 14. (see Manotoc v. CA, G.R. No. 130974,
Aug. 16, 2006).
How Substituted Service Made
Substituted service is effected by:
a. Leaving copies of the summons at the
defendant’s residence to a person:
i. At least 18 years of age;
ii. With sufficient discretion; and
iii. Must be residing therein.
Note: "Discretion" is defined as "the ability to
make decisions which represent a
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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. (Manotoc v. CA,
G.R. No. 130974, Aug. 16, 2006).
b. By leaving copies of the summons at the
defendant's office or regular place of
business with some competent person. A
competent person includes, but is not limited
to,
one
who
customarily
receives
correspondences for the defendant;
c. If the server is refused entry upon making his
authority or purpose known, by leaving copies
of the summons to the following:
(a) Any officer of the homeowner’s
association
or
condominium
corporation;
(b) Chief security officer in charge of the
community or building where the defendant
may be found.
Note: It was not shown that the security guard
who received the summons in behalf of the
petitioner was authorized and possessed a
relation of confidence that petitioner would
definitely receive the summons. This is not
the kind of service contemplated by law.
Thus, service on the security guard could
not
be considered as substantial
compliance with the requirements of
substituted service. (Chu v. Mach Asia
Trading, G.R. No. 184333, 2013)
d. If allowed by the court, by sending an
electronic mail to the defendant. (Sec. 6, Rule
14).
The failure to comply faithfully, strictly and fully
with all the foregoing requirements of substituted
service renders the service of summons
ineffective. (San Pedro v. Ong, G.R. No. 177598,
Oct. 17, 2008).
REMEDIAL LAW
6. CONSTRUCTIVE SERVICE
a. Service Upon A Defendant Where His
Identity Is Unknown Or Where His
Whereabouts Are Unknown
How Service of Summons Effected
In any action, service of summons may be
effected by publication in a newspaper of general
circulation where:
1. A leave of court is secured; and
2. The defendant is designated as an unknown
owner; or
3. The defendant’s whereabouts are unknown and
cannot be ascertained by diligent inquiry, within
90 calendar days from the commencement of
the action. (Sec. 16, Rule 14).
Any order granting such leave shall specify a
reasonable time, which shall not be less than 60
calendar days after notice, within which the
defendant must answer. (Id.).
The Rule expressly states that it applies "in any
action…" Thus, it now applies to any action,
whether in personam, in rem, or quasi in rem.
(Santos, Jr. v. PNOC Exploration Corp., G.R. No.
170943, Sep. 23, 2008).
Hierarchy in the Modes of Service
It is not correct to proceed immediately to service
by publication, as there is a hierarchy of rules in
the service of summons, to wit:
1. Personal service;
2. Substituted service; and
3. Service by publication, whenever the
defendant's whereabouts are unknown and
cannot be ascertained by diligent inquiry.
Only upon failure of the first two modes can
service by publication can be made, in cases
where the defendant’s identity or whereabouts are
unknown. (RIANO, 2019, p. 423, citing Borlongan
v. Banco de Oro, G.R. No. 217617, Apr. 5, 2017).
Period to File an Answer
Any order granting such leave shall specify a
reasonable time, which shall not be less than 60
calendar days after notice, within which the
defendant must answer. (Sec. 16, Rule 14).
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b. Service Upon Residents Temporarily
Outside The Philippines
How Service of Summons Effected
In any action where the defendant who resides in
the Philippines is temporarily out of it, service may
be effected by:
a. Personal service;
b. Substituted service (PCIB v. Alejandro, G.R. No.
175587, Sep. 21, 2007);
c. As provided in international conventions where
the Philippines is a party;
d. By publication in a newspaper of general
circulation in places and time as the court may
order and a copy of the summons shall be sent
by registered mail to the defendant’s last
known address; and
e. Any other manner as the court may deem
sufficient. (Sec. 18, Rule 14 vis-à-vis Sec. 17,
Rule 14).
Leave of court is necessary to effect a service of
summons on a resident defendant who is
temporarily out of the Philippines. (Sec. 17, Rule
14).
The Rule refers to “any action.” Thus, in actions in
personam against residents temporarily out of the
Philippines, the court need not always attach the
defendant's property in order to have authority to
try the case as jurisdiction may be acquired
through substituted service or publication. (PCIB
v. Alejandro, G.R. No. 175587).
Period to File an Answer
Any order granting such leave shall specify a
reasonable time, which shall not be less than 60
calendar days after notice, within which the
defendant must answer. (Sec. 18, Rule 14 vis-àvis Sec. 17, Rule 14).
7. EXTRATERRITORIAL SERVICE, WHEN
ALLOWED
When Extraterritorial Service Allowed
Extraterritorial service of summons is allowed
when:
1. The defendant is a non-resident;
2. He or she is not found in the Philippines;
3. The action involves:
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a. That which affects the personal status of
the plaintiff;
b. That which relates to or the subject matter of
which is property within the Philippines,
in which the defendant claims a lien or
interest, actual or contingent;
c. That in which the relief demanded consists,
wholly or in part, in excluding the
defendant from an interest in property
located in the Philippines; or
d. That in which the defendant property has
been attached in the Philippines; and
4. Leave of court is secured. (Sec. 17, Rule 14).
Extraterritorial service can only involve actions that
are either in rem or quasi in rem. (Spouses Jose v.
Spouses Boyon, G.R. No. 147369, Oct. 23, 2003).
If the defendant is non-resident and, remaining
beyond the range of the personal process of the
court and he refuses to come in voluntarily, the
court never acquires jurisdiction over the person at
all. Here the property itself is in fact the sole thing
which is impleaded and is the responsible object
which is the subject of the exercise of judicial
power. It follows that the jurisdiction of the court in
such case is based exclusively on the power
which, under the law, it possesses over the
property. Upon acquisition of jurisdiction over the
property, the court can validly hear the case. (El
Banco Español-Filipino v. Palanca, G.R. No. L11390, Mar. 26, 1918).
Note that in extraterritorial service, jurisdiction over
the person of the defendant is not acquired.
Nevertheless, summons must still be served to
satisfy the requirements of due process.
(Gomez v. CA, G.R. No. 127692, Mar. 10, 2004).
In one case, the Court carved out a very narrow
exception to the requirement of personal service.
In said case, the Court deemed valid the summons
to the non-resident defendant was served upon
the resident spouse who was also the defendant’s
attorney-in-fact. It was shown therein that the
spouse had authority to sue on behalf of her
husband, and in fact had done so, and had the
power to represent him in suits against him. of,
(Gemperle v. Schenker, G.R. No. L-18164, Jan 23,
1967).
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How Extraterritorial Service of Summons
Effected
Extraterritorial service may be effected by:
a. Personal service;
b. As provided in international conventions where
the Philippines is a party;
c. By publication in a newspaper of general
circulation in places and time as the court may
order and a copy of the summons shall be sent
by registered mail to the defendant’s last
known address; and
d. Any other manner as the court may deem
sufficient. (Sec. 17, Rule 14).
“In Any Other Manner the Court May Deem
Sufficient”
In one case, the leave granted by the lower court
to effect extraterritorial service by means of
registered mail sent by the clerk of court at the
instance of the plaintiffs was considered valid as it
falls under the last mode of extraterritorial service
which is “in any other manner as the court may
deem sufficient.” (Cariaga Jr. v. Malaya, G.R. No.
L-48375, Aug. 13, 1986).
Leave of Court
Any application to the court under Rule 14 for
leave to effect service in any manner for which
leave of court is necessary shall be made by:
1. A motion in writing;
2. Supported by affidavit of the plaintiff or some
person on his behalf; and
3. The motion shall set forth the grounds for the
application. (Sec. 19, Rule 14).
8. SERVICE UPON PRISONERS AND
MINORS; UPON SPOUSES
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Service Upon Minors and Incompetents
When the defendant is a minor, insane or
otherwise an incompetent person, service of
summons shall be made:
1. Personally upon him or her; and
2. His or her legal guardian, if any; or in the
absence of a legal guardian, his or her guardian
ad litem, whose appointment shall be applied
for by the plaintiff. (Sec. 10, Rule 14).
If the defendant is a minor, service can also be
made to his or her parent or guardian. (Id.).
9. SERVICE UPON DOMESTIC OR FOREIGN
PRIVATE JURIDICAL ENTITY
What are Domestic Private Juridical Entities
A defendant is a domestic private juridical entity
when it is a:
a. Corporation;
b. Partnership; or
c. Association organized under the laws of the
Philippines with a juridical personality. (Sec.
12, Rule 14).
To Whom Summons on Domestic Private
Juridical Entities May be Served
Service of summons upon a domestic private
juridical entity may be made on its:
a. President;
b. Managing partner;
c. General manager;
d. Corporate secretary;
e. Treasurer; or
f. In-house counsel. (Sec. 12, Rule 14).
Service of summons may be made on the above
persons wherever they may be found. (Id.).
Service Upon Prisoners
When the defendant is a prisoner confined in a
jail or institution, 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).
The above list is “restricted, limited, and
exclusive.” (Paramount Insurance Corp. v. A.C.
Ordoñez Corporation, G.R. No. 175109, Aug. 6,
2003)
The jail warden shall file a return 5 calendar days
from service of summons to the defendant. (Id.).
Note: under the 2019 Amendments, in the
absence or unavailability of the foregoing
persons, service may be made upon their
secretaries. (Sec. 12, Rule 14).
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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. (Id.).
Should there be a refusal on the part of the
persons above-mentioned to receive summons
despite at least 3 attempts on 2 different dates,
service may be made electronically, if allowed
by the court, as provided under Section 6 of this
Rule. (Id.).
How Summons on Domestic Private Juridical
Entities May be Served
Service of summons upon a domestic private
juridical entity may be made in the following
hierarchical order:
1. To the juridical entity’s president, managing
partner, general manager, corporate secretary,
treasurer, or in-house counsel, wherever they
may be found;
2. In the absence or unavailability of the foregoing,
to their respective secretaries;
3. If service cannot be made to the foregoing
persons or their secretaries, to the person who
customarily receives the correspondence
for the defendant at his principal office; and
4. Should there be refusal on the above-mentioned
person to receive the summons despite at least
3 attempts on 2 different dates, service may
be made electronically if allowed by the
court. (Id.).
Doctrine of Substantial Compliance
The requisites for the application of the doctrine of
substantial compliance are:
1. There must be actual receipt of the summons by
the person served, i.e., transferring possession
of the copy of the summons from the Sheriff to
the person served;
Note: Service of summons upon any of the
enumerated persons in the respective modes
allowed by Sec. 12, Rule 14 is deemed valid
service of summons upon the domestic private
juridical entity and not mere “substantial
compliance”.
2. The person served must sign a receipt or the
sheriffs return; and
REMEDIAL LAW
3. There must be actual receipt of the summons by
the corporation through the person on whom
the summons was actually served. The third
requisite is the most important for it is through
such receipt that the purpose of the rule on
service of summons is attained. (Porac
Trucking, Inc. v. Court of Appeals G.R. No.
81093, Mar. 6, 1990).
Service of Summons Upon Domestic Private
Juridical Entity Under Receivership
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. (Sec. 12, Rule 14.).
Types of Foreign Private Juridical Entity
Under Sec. 14, Rule 14 and Secs. 140 and 150 of
the Revised Corporation Code, the following are
the types of foreign private juridical entities:
a. Foreign private juridical entity doing business
AND registered in the Philippines;
b. Foreign private juridical entity doing business
NOT registered in the Philippines’
c. Foreign private juridical entity NOT registered in
the Philippines but transacted therein in an
ISOLATED TRANSACTION.
A duly registered foreign corporation has the
power to sue and be sued. (Sec. 146, Revised
Corporation Code).
General Rule: A corporation not registered, but is
doing business, or has transacted in a nonisolated manner shall have NO power to sue but it
may be sued. (Sec. 150, Revised Corporation
Code).
Exceptions:
a. Jurisprudence allows foreign corporations not
registered but has dealt in an isolated
transaction to sue pursuant to such transaction.
(Rimbuan Group of Companies v. Oriental
Wood Processing Corp., G.R. No. 152228,
Sept. 23, 2005);
b. Foreign corporations are also allowed to sue to
protect its trade name or goodwill. (Philip
Morris, Inc. v. Court of Appeals, G.R. No.
91332, Jul. 16, 1993).
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To Whom Service of Summons Upon Foreign
Private Juridical Entity Registered in the
Philippines is Made
When the defendant is a registered foreign private
juridical entity which is doing business in the
Philippines, as defined by law, summons may be
served on:
a. Its resident agent designated in accordance
with law for that purpose; or
b. If there be no such agent, the government
official designated by law to that effect; or
c. On any of its officers, agents, directors or
trustees within the Philippines. (Sec. 14, Rule
14).
To Whom Service of Summons Upon Foreign
Private Juridical Entity Not Registered in the
Philippines But Has Transacted or is Doing
Business in the Philippines
Meanwhile, when the defendant is a foreign
private juridical entity NOT registered but has
transacted or is doing business in the
Philippines or has transacted therein, by leave
of court, summons may be served to:
i. The government official designated by law to that
effect;
ii. Any of its officers, agents, directors or trustees
within the Philippines.
Furthermore, such foreign private juridical entities
may be served with summons through the
following means:
a. By personal service coursed through the
appropriate court in the foreign country with the
assistance of the department of foreign affairs;
b. By publication once in a newspaper of general
circulation in the country where the defendant
may be found and by serving a copy of the
summons and the court order by registered
mail at the last known address of the
defendant;
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. (Id.).
REMEDIAL LAW
Service
of
Summons
Upon
Public
Corporations
When the defendant is the Republic of the
Philippines, service may be effected on the
Solicitor General. (Sec. 15, Rule 14).
In case the defendant is 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.
Service of Summons Upon Entities Without
Juridical Personality
When persons associated in an entity without
juridical personality are sued under the name by
which they are generally or commonly known,
service may be effected upon all the defendants
by serving upon:
a. Any one of them; or
b. Upon the person in charge of the office or place
of business maintained in such name. (Sec. 7,
Rule 14).
However, such service shall not bind individually
any person whose connection with the entity has,
upon due notice, been severed before the action
was brought. (Id.).
10. PROOF OF SERVICE
Proof of Service for Personal or Substituted
Service of Summons
For personal or substituted service of summons,
proof of service shall be made:
1. In writing by the server;
2. Shall set forth the manner, place, and date of
service;
3. Shall specify any papers which have been
served with the process and the name of the
person who received the same; and
4. Shall be sworn to when made by a person other
than a sheriff or his or her deputy. (Sec. 21,
Rule 14).
In addition, for substituted service, the return of the
summons shall state the required details under
Sec. 20, Rule 14 (see discussions on Return).
The certificate of service of the process server of
the court a quo is prima facie evidence of the facts
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as set out therein. This is fortified by the
presumption of the regularity of performance of
official duty. To overcome the presumption of
regularity of official functions in favor of such
sheriff’s return, the evidence against it must be
clear and convincing. Sans the requisite quantum
of proof to the contrary, the presumption stands
deserving of faith and credit. (Guanzon v.
Arradaza, G.R. No. 155392, Dec. 12, 2006)
The impossibility of personal service justifying
availment of substituted service should be
explained in the proof of service; and why efforts
exerted towards personal service failed. The
pertinent facts and circumstances attendant to the
service of summons must be stated in the proof of
service or Officer’s Return; otherwise, the
substituted service cannot be upheld. (Samartino
v. Raon et. al., G.R. No. 131482, Jul. 3, 2002).
Proof of Service of Summons by Electronic
Mail
If summons was served by electronic mail, the
proof of service shall be:
1. A printout of said e-mail, with a copy of the
summons as served; and
2. An affidavit of the person mailing. (Sec. 21, Rule
14).
Proof of Service by Publication
Proof of service of summons by publication shall
be proven by:
1. Affidavit of the publisher, editor, business or
advertising manager, to which a copy of the
publication shall be attached; and
2. 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 or her last
known address. (Sec. 22, Rule 14).
A motion is an application made to a court or judge
for the purpose of obtaining a rule or order
directing some act to be done in favor of the
applicant. (Donton v. Loria, A.M. No. P-03-1684,
March 10, 2006).
b. Distinguish: Motion And Pleadings
Motion vs. Pleading
PLEADING
MOTION
Written statements of
the respective claims
and defenses of the
parties submitted to
the
court
for
appropriate
judgment. (Sec. 1,
Rule 6).
An application, other
than
a
pleading,
made to a court or
judge for the purpose
of obtaining a rule or
order directing some
act to be done in favor
of the applicant. (Sec.
1, Rule 15; Donton v.
Loria).
Cannot be initiatory
as motions are made
in a case already filed
in
court
(see
Rimbunan
Hijau
Group v. Oriental
Wood
Processing
G.R. No. 152228,
Sep. 23, 2005).
May be written or oral
when made in open
court or in the course
of a hearing or a trial
(Sec. 2, Rule 15).
May be filed after
judgment
(e.g.,
motion for new trial or
reconsideration, see
Rule 37).
May be initiatory (see
Sec. 2, Rule 6).
Must be written (Sec.
1, Rule 6).
Must be filed before
judgment because it
is
subject
to
adjudication. (Sec. 1,
Rule 6).
c. Contents And Form Of Motions
H. MOTIONS
1. MOTIONS IN GENERAL
a. Definition Of A Motion
An application for relief other than by a pleading.
(Sec. 1, Rule 15).
Form of Motions
Generally, motions shall be in writing, unless
made in open court or in the course of a hearing
or trial. If made in open court or during trial, the
motion must be immediately resolved after the
adverse party is given the opportunity to argue his
or her opposition. (Sec. 2, Rule 15).
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When a motion is based on facts not appearing
on record, the court may hear the matter on
affidavits or depositions presented by the
respective parties, but the court may direct that
the matter be heard wholly or partly on oral
testimony or depositions. (Id.).
Litigious motions shall be served by personal
service, accredited private courier, registered mail,
or by electronic means so as to ensure their
receipt by the other party. (Sec. 5 (b), Rule 15). No
written motion shall be acted upon by the court
without proof of service thereof. (Sec. 7, Rule 15).
The Rules applicable to pleadings shall apply to
written motions so far as concerns caption,
designation, signature, and other matters of form.
(Sec. 11, Rule 15).
No other submissions shall be considered by the
court in the resolution of the motion except for the
opposition of the adverse party to the motion,
which must be filed within 5 days from receipt of
the motion. (Sec. 5 (c), Rule 15).
Contents of a Motion
1. Statement of relief sought to be obtained.
2. Grounds upon which the motion is based.
3. Supporting affidavits and other papers when
required by the Rules or when necessary to
prove facts stated in motion. (Sec. 3, Rule 15).
A motion for leave to file a pleading or motion shall
be accompanied by the pleading or motion sought
to be admitted. (Sec. 10, Rule 15)
d. Litigious And Non-Litigious Motions;
When Notice Of Hearing Necessary
Litigious Motions
Litigated (Litigious) motions are those which the
Rules call for the service of copy thereof upon the
opposing party and which may be set for hearing.
(Tabujara III v. Gonzales-Asdala, A.M. No. RTJ08-2126, Jan. 20, 2009).
The following are litigious motions:
1. Motion for bill of particulars;
2. Motion to dismiss;
3. Motion for new trial;
4. Motion for reconsideration;
5. Motion for execution pending appeal;
6. Motion to amend after a responsive pleading
has been filed;
7. Motion to cancel statutory lien;
8. Motion for an order to break in or for a writ of
demolition;
9. Motion for intervention;
10. Motion for judgment on the pleadings;
11. Motion for summary judgment;
12. Demurrer to evidence;
13. Motion to declare defendant in default; and
14. Other similar motions. (Sec. 5 (a), Rule 15).
The court shall resolve the motion within 15
calendar days from receipt of the opposition or
upon the lapse of the period to file the same. (Id.).
The court, in its discretion and if it deems it
necessary, may call a hearing on the litigious
motion. The notice of hearing shall be addressed
to all parties concerned and shall specify the time
and date of the hearing. (Sec. 6, Rule 15).
Motions are generally set for hearing on a Friday,
unless they require immediate action. (Sec. 8,
Rule 15).
Note that the rule requiring the notice to be given
to the adverse party at least 3 days prior to the
hearing day (3-day notice rule) AND the rule
requiring the hearing to be set not later than 10
days from the filing of the motion was REMOVED
by the 2019 Amendments.
Non-Litigious Motions
Motions which the court may act upon without
prejudicing the rights of adverse parties are nonlitigious motions. They shall not be set for hearing
and shall be resolved by the court within 5
calendar days from receipt thereof. (Sec. 4, Rule
15).
The following are non-litigious motions:
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;
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6. Motion for the issuance of a writ of possession;
7. Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale;
and
8. Other similar motions.
(Id.).
The notice requirement does not apply to motions
which may be heard ex-parte (non-litigious). The
reason for this is that these motions are noncontentious and do not as a rule involve the
substantial rights of the other parties in the suit.
(Denso (Phils.), Inc. v. Intermediate Appellate
Court, G.R. No. 75000, Feb. 27, 1987).
Litigious vs. Non-litigious Motions
LITIGIOUS
NON-LITIGIOUS
MOTIONS
MOTIONS
Motions which are Motions which the
allowed
to
be court may act upon
opposed and may be without
prejudicing
set for hearing. (Sec. the rights of adverse
5(c), Rule 15).
parties and are not
set for hearing. (Sec.
4, Rule 15).
Must be served to the Need not be served to
adverse party and the adverse party.
service must be duly (Id.).
proven. (Sec. 5 (b),
Sec. 7, Rule 15).
Opposition to the No opposition may be
motion may be filed. filed. (Id.).
(Sec. 5(c), Rule 15)
Resolved by the court
within 15 days from
the filing of the
opposition or from the
expiration to file the
same, unless the
court decide to set the
motion for hearing.
(Sec. 5(c), Rule 15)
Resolved by the court
within 5 calendar
days from receipt
thereof. (Sec. 4, Rule
15).
e. Omnibus Motion Rule
The omnibus motion rule is a procedural principle
which requires that every motion that attacks a
pleading, judgment, order or proceeding shall
include ALL objections THEN AVAILABLE and all
REMEDIAL LAW
objections not so included shall be deemed
WAIVED. (Sec. 9, Rule 15).
This is in conjunction with Sec. 1 of Rule 9 which
requires that defenses and objections must be
pleaded in either the answer or in a motion to
dismiss, otherwise, they are deemed waived.
Exceptions to the Omnibus Motion Rule
The following grounds, although not raised, are not
deemed waived:
a. Lack of jurisdiction over subject matter;
b. Litis pendentia;
c. Res judicata; and
d. Prescription. (Sec. 1, Rule 9)
f. Prohibited Motions
The following are prohibited motions:
1. Motion to dismiss, except for certain grounds;
2. Motion to hear affirmative defenses;
3. Motion for reconsideration of the court's action
on the affirmative defenses;
4. Motion to suspend proceedings without a
temporary restraining order or injunction issued
by a higher court;
5. Motion for extension of time to file pleadings,
affidavits or any other papers, except a motion
for extension to file an answer;
6. Motion for postponement intended for delay,
save for certain exceptions.
(Sec. 12, Rule 15).
Motion to Dismiss
A motion to dismiss is now a prohibited motion,
save for the following grounds:
a. Lack of jurisdiction of the court over the subject
matter;
b. Litis pendentia;
c. Res judicata; and
d. Prescription. (Sec. 12 (a), Rule 15).
Motion to Hear Affirmative Defenses
Under Sec. 12 (c) of Rule 8, the court shall motu
propio resolve the affirmative defenses. Thus, a
motion to hear affirmative defenses is not allowed.
However, for affirmative defenses under the first
paragraph of Section 5 (b) of Rule 6, the court
MAY opt to conduct a summary hearing. (See Sec.
12 (c) and (d) of Rule 8; Sec 5 (b), Rule 6).
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Note: See previous discussion on Affirmative
Defenses.
REMEDIAL LAW
2. MOTIONS FOR BILL OF PARTICULARS
a. Purpose And When Applied For
Motion for Reconsideration of the Court's
Action on the Affirmative Defenses
Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration or
petition for certiorari, prohibition or mandamus, but
may be among the matters to be raised on appeal
after a judgment on the merits. (Sec. 12 (e), Rule
8).
Motion to Suspend Proceedings Without A
Temporary Restraining Order Or Injunction
Issued By A Higher Court
Under the 2019 Amendments, a motion to
suspend proceedings cannot be filed unless
supported by a temporary restraining order or an
injunction coming from a higher court. (Sec. 12 (d),
Rule 15).
Motion for Extension of Time to File Pleadings,
Affidavits or Any Other Papers
A motion for extension to file any pleading, other
than an answer, is prohibited and considered a
mere scrap of paper. The court, however, may
allow any other pleading to be filed after the time
fixed by these Rules. (Sec. 11, Rule 11).
A motion for extension to file an answer can only
be filed ONCE. (Id.).
Motion for Postponement Intended for Delay
Generally, a motion to postpone proceedings is
not allowed, except if it is based on:
a. Acts of God;
b. Force majeure; or
c. Physical inability of the witness to appear and
testify. (Sec. 12 (f), Rule 15).
The presentation of evidence must still be
terminated on the dates previously agreed upon
despite the grant of the motion to postpone the
proceedings. (Id.).
The postponement fee must be duly paid, and the
official receipt evidencing the payment must be
filed together with the motion, or to be submitted
on the next hearing day. Otherwise, the motion will
not be accepted. (Id.).
Purpose of a Bill of Particulars
A bill of particulars is a complementary procedural
document consisting of an amplification or more
particularized outline of a pleading, and being in
the nature of a more specific allegation of the facts
recited in the pleading. It is the office of the bill of
particulars to inform the opposite party and the
court of the precise nature and character of the
cause of action or defense which the pleader has
attempted to set forth and thereby to guide his
adversary in his preparations for trial, and
reasonably to protect him against surprise at the
trial. (Virata v. Sandiganbayan, G.R. No. 114331,
May 27, 1997).
A motion for a bill of particulars may be addressed
to any pleading, and is not merely limited to a
complaint. (RIANO, 2019, p.435).
An allegation that the “defendant acted in unlawful
concert with the other defendant in illegally
amassing assets, property and funds in amounts
disproportionate to the latter’s income,” is a proper
subject of a motion for bill of particulars. Plaintiff is
bound to clarify the specific nature, manner and
extent of the alleged collaboration between the
defendants. Allegations couched in general terms
are not statements of ultimate facts. (Republic v
Sandiganbayan, G.R. No. 148154, Dec. 17, 2007)
A bill of particulars becomes part of the pleading
for which it is intended. (Sec 6, Rule 12)
When Bill of Particulars is Applied For
A motion for a bill of particulars must be filed
BEFORE responding to a pleading. (Sec. 1, Rule
12)
If the pleading is a reply, the motion must be filed
within 10 calendar days from service thereof. (Id.).
Contents of the Motion
The motion for bill of particulars shall point out:
1. Defects complained of;
2. The paragraphs wherein they are contained;
3. The details desired by the movant. (Id.).
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b. Actions Of The Court
Upon the filing of the motion, the clerk of court
must immediately bring it to the attention of the
court. Thereafter, the court may:
a. Deny the motion outright;
b. Grant the motion outright; or
c. Allow the parties the opportunity to be
heard. (Sec. 2, Rule 15).
c. Compliance With The Order And Effect Of
Non-Compliance
Compliance
When the motion is granted (in whole or in part),
compliance must be effected within 10 calendar
days from notice of the order, unless the court
fixes a different period. (Sec. 3, Rule 12).
In complying with the order, the pleader may file
and serve to the adverse party the bill of
particulars either:
a. In a separate pleading; or
b. In the form of an amended pleading. (Id.).
Effect of Noncompliance or Insufficient
Compliance
If the order is not obeyed or the compliance
therewith is insufficient, the court may:
a. Order striking out of the pleading;
b. Order striking out portions of pleading to which
the order was directed;
c. Make such other order as it deems just; (Sec. 4,
Rule 12).
d. Effect On The Period To File A
Responsive Pleading
Filing of bill of particulars stays the period to file a
responsive pleading. (Sec. 5, Rule 12).
Movant may file his responsive pleading within the
period to which he is entitled (balance of
reglementary period) at the time the bill of
particulars is filed, which shall NOT be less than
FIVE (5) DAYS in any event AFTER:
a. Service of the bill of particulars upon him; or
b. Notice of the denial of his motion. (Id.).
REMEDIAL LAW
When Filing for a Bill of Particulars is Not
Appropriate
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. (Salita v. Magtolis, G.R.
No. 106429, Jun. 13, 1994).
It would not be proper for a motion for a bill of
particulars to call for the production of particulars
constituting malice, intent, knowledge, or
conditions of the mind as such matters may be
averred generally. (RIANO, 2019, p. 436).
I. DISMISSAL OF ACTIONS
1. DISMISSAL WITH PREJUDICE
A dismissal with prejudice bars the refiling of the
complaint and, when the law permits, is subject to
the right of appeal. (Heirs of Sadhwani v.
Sadhwani, G.R. No. 217365, Aug. 14, 2019).
Dismissal Due to the Fault of the Plaintiff –
With Prejudice
The complaint may be dismissed upon motion of
the defendant or upon the court's own motion
and shall have the effect of an adjudication on
the merits, unless otherwise declared by the
court, if for no justifiable cause the plaintiff:
a. Fails to appear on the date of the presentation
of his or her evidence in chief on the
complaint;
b. Fails to prosecute his or her action for an
unreasonable length of time; or
c. Does not comply with the Rules of Court or
any order of the court.
(Sec. 3, Rule 17).
In granting the dismissal, the trial court specifically
orders the dismissal to be without prejudice. In
case of dismissal due to plaintiff’s failure to
prosecute, it is only when the trial court's order is
either silent on the matter, or states otherwise, that
the dismissal will be considered an adjudication on
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the merits. (Ching v. Cheng, G.R. No. 175507,
Oct. 8, 2014).
The fundamental test for non prosequitur is
whether, under the circumstances, the plaintiff is
chargeable with want of due diligence in failing to
proceed with reasonable promptitude. There must
be unwillingness on the part of the plaintiff to
prosecute. (Shimizu Philippines Contractors v.
Magsalin, G.R. No. 170026, June 20, 2012).
Dismissal for failure to prosecute is an adjudication
on the merits. Therefore, such dismissal should be
challenged by APPEAL within the reglementary
period. (3A Apparel Corporation vs. Metropolitan
Bank and Trust Co. G.R. 186175, Aug. 23, 2010).
Dismissals with Prejudice by Motion to
Dismiss or Affirmative Defenses
Subject to the right of appeal, an order granting a
motion to dismiss or an affirmative defense based
on the following shall bar the refiling of the same
action:
i. Res judicata;
ii. Prescription; or
iii. The claim or demand of the plaintiff has been:
(i) Paid;
(ii) Waived;
(iii) Abandoned;
(iv) Extinguished; or
(v) Unenforceable under the Statute of Frauds.
(Sec. 13, Rule 15).
Other Dismissals With Prejudice
The following dismissal shall likewise bar the
refiling of the same action:
i. Willful and deliberate forum shopping by the
party or his or her counsel (Sec. 5, Rule 7);
ii. Plaintiff’s misrepresentation that he or she has
served summons to the defendant, in cases
where plaintiff is authorized by the court to
serve summons. (Sec. 3, Rule 14);
iii. Failure of the plaintiff or counsel to appear,
without valid cause, during the pre-trial, courtannexed mediation, and judicial dispute
resolution (Secs. 3 and 5, Rule 18);
iv, Failure of the party to file his or her pre-trial brief
(Sec. 5 and 6, Rule 18);
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v. Dismissal by notice of the plaintiff where such
notice provides that the dismissal is with
prejudice (Sec. 1, Rule 17);
vi. Dismissal by notice of the plaintiff covered by
the two-dismissal rule (Id.);
vii. Dismissal by motion of the plaintiff and the
court orders that it is with prejudice. (Sec. 2,
Rule 17).
The above dismissals are subject to the right of
appeal. (see Sec. 1, Rule 41).
The Rules of Court accommodates the outright
dismissal of a complaint upon plaintiff's failure to
show justifiable reason for not setting the case for
pre-trial within the period provided by the
Rules. Although Section 1, Rule 14 of the Rules
imposes upon the clerk of court the duty to serve
summons, this does not relieve the petitioner of
her own duty as the plaintiff in a civil case to
prosecute the case diligently, and if the clerk had
been negligent, it was petitioner's duty to call the
court's attention to that fact. (Bank of the Philippine
Islands v. Spouses Genuino, G.R. No. 208792,
July 22, 2015.)
2. DISMISSAL UPON NOTICE BY PLAINTIFF
When Dismissal By Notice Allowed
A complaint may be dismissed by the plaintiff by
filing a notice of dismissal at any time before:
a. Service of the answer; or
b. Motion for summary judgment.
(Sec. 1, Rule 17).
After the notice has been filed, the court shall issue
an order confirming the dismissal. (Id.).
But in case of a class suit, dismissal of the action
requires approval of the court. (Sec. 2, Rule 17).
It is not the order confirming the dismissal which
operates to dismiss the complaint. Said order
merely confirms a dismissal already effected by
the filing of the notice of dismissal. (RIANO, 2019,
p. 457).
The trial court has no choice but to consider the
complaint as dismissed, since the plaintiff may opt
for such dismissal as a matter of right, regardless
of the ground. Upon filing of notice, the motion to
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REMEDIAL LAW
dismiss by the defendants therein is rendered
moot and academic. (Dael v. Spouses Beltran,
G.R. No. 156470, Apr. 30, 2008).
3. DISMISSAL UPON MOTION BY
PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM
Dismissal By Notice - Without Prejudice
As a general rule, dismissal by notice of the
plaintiff is without prejudice to the refiling of the
same action, except:
a. The notice expressly provides that the dismissal
is with prejudice; or
b. The dismissal is covered by the two-dismissal
rule.
(Sec. 1, Rule 17).
When Dismissal by Motion is Required
If an answer or a motion for summary judgment
has already been served, a complaint shall be
dismissed only upon motion of the plaintiff and by
approval of the court, based on such terms and
conditions as the it deems proper. (Sec. 2, Rule
17).
But even if the notice of dismissal does not
expressly state that it is with prejudice, the
dismissal shall be considered with prejudice if the
notice provides a reason that bars the refiling of
the complaint. This happens when, for instance,
the reason for the dismissal was that the
defendant has already paid the claim, or the
plaintiff recognizes that his claim is barred by
prescription. (RIANO, 2019, p. 458).
Two-dismissal Rule
The notice operates as an adjudication upon the
merits when:
1. Filed by the same plaintiff;
2. The same plaintiff has once dismissed an action
in a competent court by notice;
3. The second action is based on or including the
same claim as the first action.
4. The second action was also dismissed by mere
notice of the plaintiff.
(Sec. 1, Rule 17).
The Two-dismissal Rule applies only when both
dismissals (the first and the second), were at the
instance of the plaintiff. Here, the dismissal of the
first case was at the instance of the defendant
(motion to dismiss on the ground of lack of
jurisdiction over the subject matter), while that of
the second case was at the instance of the plaintiff.
The circumstances surrounding each dismissal
must first be examined to determine before the
rule may apply, as in this case. (Ching v. Cheng,
G.R. No. 175507, Oct. 8, 2014).
Dismissal by Motion of Plaintiff – Without
Prejudice
The dismissal by motion of the plaintiff is without
prejudice to the refiling of the same, unless the
order of dismissal specifies that it is with prejudice.
(Sec. 2, Rule 17).
Effect of Dismissal by Motion on Prescriptive
Period
The dismissal upon motion by plaintiff is NOT for
the purpose of voluntarily abandoning his claim
when the intention was to expedite the
enforcement of his rights and there was clearly no
inaction nor lack of interest on his part. In
prescription, there must be a categorical showing
that due to plaintiff's negligence, inaction, lack of
interest, or intent to abandon a lawful claim or
cause of action, no action whatsoever was taken.
Prescription, therefore, does not run. (Antonio, Jr.
vs. Morales G.R. 165552, Jan. 23, 2007).
Effect on Dismissal by Motion on the
Counterclaim
The dismissal of the action by motion shall not
affect the right of the defendant to prosecute his
counterclaim either:
a. In a separate action; or
b. In the same action, after manifesting his
intention to do so within 15 calendar days from
the filing of the motion to dismiss by the plaintiff.
(Sec. 2, Rule 17).
The dismissal of the complaint does not
necessarily carry with it the dismissal of the
counterclaim, compulsory or otherwise. The
dismissal of the complaint is without prejudice to
the right of the defendants to prosecute the
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counterclaim. (Pinga v. Santiago, G.R. No.
170354, Jun. 30, 2006)
Three Situations Involving the Effect of a
Dismissal of a Complaint on the Counterclaim
Already Set Up
1. When the defendant files an answer raising
therein an affirmative defense, as well as a
counterclaim, and upon hearing of the
affirmative defenses, the court dismisses the
case – Under Rule 16, Sec. 6 of the1997 Rules
on Civil Procedure, the dismissal of the
complaint shall be without prejudice to the
prosecution of the counterclaim in the same or
a separate action.
Note: Rule 16 has been entirely deleted in the
2019 Amendments. The previous grounds for a
motion to dismiss are now affirmative
defenses, with certain exceptions. (see
discussions on affirmative defenses and
motions; see also Sec. 12, Rule 8 and Sec.
12(a), Rule 15)
ii. When the plaintiff himself files a motion to
dismiss his complaint after the defendant has
pleaded his answer with a counterclaim, and
the court grants the motion - Again, the
dismissal shall be without prejudice to the right
of the defendant to prosecute his counterclaim
in a separate action unless within 15 days from
notice of the motion he manifests his
preference to have his counterclaim resolved in
the same action. (Sec. 2, Rule 17).
REMEDIAL LAW
counterclaim also cannot survive. Conversely, if
the counterclaim itself states sufficient cause of
action then it should stand independently and
survive the dismissal of the complaint. (Perkin
Elmer Singapore Pte. Ltd. vs. Dakila Trading
Corporation G.R. 172242, Aug. 14, 2007)
4. DISMISSAL DUE TO FAULT OF
PLAINTIFF
Note: see discussions on Dismissals Due to the
Fault of the Plaintiff under Dismissals With
Prejudice
5. DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM OR THIRD-PARTY
COMPLAINT
The provisions under Rule 17 apply to the
dismissal of any counterclaim, cross-claim or thirdparty complaint. (Sec 4. Rule 17).
A voluntary dismissal of the counterclaim, crossclaim, or third-party claim by notice of the
claimant can be made before:
a. Service of a responsive pleading thereto;
b. Service of a motion for summary judgment;
or
c. In the absence of a responsive pleading and
motion for summary judgment, before the
introduction of evidence.
(Id.).
J. PRE-TRIAL
iii. When complaint is dismissed through the
plaintiff’s fault and at a time when a
counterclaim has already been set up - The
dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the
same or separate action. (Sec. 3, Rule 17).
The phraseology of the provision is clear: the
counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim,
because the rules make no distinction. (RIANO,
2019, p. 461).
If the dismissal of the complaint somehow
eliminates the cause of the counterclaim, then the
1. CONCEPT OF PRE-TRIAL
Concept under A.M. No. 03-1-9-SC
An undeniably important and vital component of
case management in trial courts, the purpose of
which is to abbreviate court proceedings, ensure
prompt disposition of cases and decongest court
dockets.
Pre-trial shall endeavor to persuade the parties to
arrive at a settlement of the dispute, with due
regard to the rights of the parties.
The court shall endeavor to make the parties
agree to an equitable compromise or settlement at
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any stage of the proceedings before rendition of
judgment.
Concept Derived from Jurisprudence
Pre-trial is primarily intended to make certain that
all issues necessary to the disposition of a case
are properly raised. To eliminate the element of
surprise during actual trial, parties are expected to
disclose at the pre-trial conference all issues of law
and fact that they intend to raise at the
trial. However, in cases in which the issue may
involve privileged or impeaching matters, or if the
issues are impliedly included therein or may be
inferable therefrom by necessary implication as
integral parts of the pre-trial order, then the
general rule does not apply. A pre-trial order is not
meant to be a detailed catalogue of each and
every issue that is to be or may be taken up during
the trial. (LCK Industries v. Planters Development
Bank, G.R. No. 170606, 2007)
2. NATURE AND PURPOSE
Nature of Pre-trial
Pre-trial is mandatory and should be terminated
promptly. (Rule 18, Sec. 2) The pre-trial is
mandatory BOTH in civil and in criminal cases.
(Rule 118, Sec. 1)
Purpose of Pre-trial
The purpose of the pre-trial is to allow the court to
consider:
1. The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
2. The simplification of the issues;
3. The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
4. The limitation of the number and identification of
witnesses and the setting of trial dates
5. The advisability of a preliminary reference of
issues to a commissioner;
6. The propriety of rendering judgment on the
pleadings, or summary judgment, or dismissing
the action should a valid ground exist;
7. The requirement of the parties to:
(1) Mark their respective evidence if not yet
marked in the judicial affidavits of their
witnesses
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(2) Examine and make comparisons of the
adverse parties’ evidence vis-à-vis the
copies to be marked
(3) Manifest for the record stipulations
regarding
the
faithfulness
of
the
reproductions and the genuineness and
dues execution of the adverse parties’
evidence
(4) Reserve evidence not available at pre-trial,
but only in the following manner:
a. For testimonial evidence – by giving the
name or position and the nature of the
testimony of the proposed witness
b. For documentary evidence and other
object evidence – by giving particular
description of the evidence; and
8. Such other matters as may aid in the prompt
disposition of the action. (Rule 18, Sec. 2)
Setting for Pre-Trial
The pre-trial brief serves as a guide during the pretrial conference so as to simplify, abbreviate and
expedite the trial if not to dispense with it. It is a
devise essential to the speedy disposition of
disputes, and parties cannot brush it aside as a
mere technicality. In addition, pre-trial rules are
not to be belittled or dismissed, because their nonobservance may result in prejudice to a party’s
substantive rights. Like all rules, they should be
followed except only for the most persuasive of
reasons when they may be relaxed to relieve a
litigant of an injustice not commensurate with the
degree of his thought[less]ness in not complying
with the procedure. (Eufemia Balatico vda. De
Agatep vs Roberta L. Rodriguez and Natalia
Aguinaldo Vda. De Lim, G.R. No. 170540, 2009)
Stipulations freely and voluntarily made are valid
and binding and will not be set aside unless for
good cause. The Rules of Court mandate parties
in a criminal case to stipulate facts. Once they
have validly and voluntarily signed the stipulations,
the accused and their counsel may not set these
aside on the mere pretext that they may be placed
at a disadvantage during the trial. (Sixto Bayas vs
Sandiganbayan, G.R. No. 143689-91, 2002).
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3. NOTICE OF PRE-TRIAL
When Pre-trial is Conducted; When Notice of
Pre-trial is Sent
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
pretrial which shall be set not later than sixty (60)
calendar days from the filing of the last responsive
pleading. (Rule 18, Sec. 1).
Note that even prior to the amendment, A.M. No.
03-1- 09-SC, July 13, 2004 provides that within
five (5) days from date of filing of the reply, the
plaintiff must promptly move ex parte that the case
be set for pre-trial conference. If the plaintiff fails
to file said motion within the given period, the
branch clerk of court shall issue a notice of pretrial. With that administrative matter, it became the
duty of the clerk of court to set the case for pre-trial
if the plaintiff fails to do so within the prescribed
period; however this did not relieve the plaintiff of
his own duty to prosecute the case diligently.
(Bank of the Philippines v. Genuino, G.R. No.
208792, Jul. 22, 2015).
With the amendment, there is no need for the
plaintiff to file or the clerk of court to await the lapse
of the period to file an ex-parte motion to set case
for pretrial, before a notice of pre-trial shall be
issued. (Rule 18, Sec. 1)
Branch clerk of court shall also prepare the
minutes of the pre-trial. (Rule 18, Sec. 2)
Contents of Notice of Pre-trial
Notice of pre-trial shall include the dates
respectively set for:
1. Pre-trial;
2. Court Annexed Mediation; and
3. Judicial Dispute Resolution, if necessary. (Rule
18, Sec. 3)
Notice shall be served on:
1. Counsel; and
2. The party himself, if he or she has no counsel.
(Rule 18, Sec. 3)
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4. APPEARANCE OF PARTIES; EFFECT OF
FAILURE TO APPEAR
Duty to Appear During Pre-Trial
Parties and their counsel both have the duty to
appear during the pre-trial, court-annexed
mediation, and judicial dispute resolution, if
necessary.
Non-appearance may be excused only for:
a. Acts of God;
b. Force Majeure; or
c. Duly substantiated physical inability. (Rule 18,
Sec. 4).
The parties and their counsels are required to
attend the pre-trial the purpose of which is to
exhaust all possibilities of reaching a compromise.
Having failed to justify their absence, they have no
valid ground to request for a new trial. Further, an
improvident termination of legal services is not a
valid excuse to be absent at the pretrial. (Jonathan
Landoil International Co v Sps. Mangudadatu,
G.R. No. 155010, 2004)
Representative to Appear on Behalf of Party
A representative may appear on behalf of a party,
but must be fully authorized in writing to enter
into:
1. An amicable settlement;
2. To submit to alternative modes of dispute
resolution; and
3. To enter into stipulations or admissions of facts
and of documents. (Rule 18, Sec. 4).
The authorization in writing must be in the form of
a special power of attorney. Entering into an
amicable settlement for a client, who is the
principal in the attorney-client relationship,
involves entering into a compromise. (RIANO,
2019, p. 471, see also Civil Code, Article 1878(3)).
Failure to Appear During Pre-trial Despite
Notice
If plaintiff AND counsel failed to appear without
valid cause when so required:
1. The case shall be dismissed with prejudice
unless otherwise ordered by the court; OR
2. The plaintiff will be allowed to present evidence
ex-parte within ten (10) calendar days from
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termination of pre-trial, and the court shall
render judgment on the basis of the evidence
offered. (Rule 18, Sec. 5); AND
3. The party shall be deemed to waive any objects
to the faithfulness of the reproductions marked,
or their genuineness and due execution. (Rule
18, Sec. 2).
7. A brief statement of points of law and citation of
authorities. (Rule 18, Sec. 6(a) to (g)).
The dismissal is to be considered as a final
judgment; thus, the remedy of the plaintiff is to
appeal. Since appeal is available, certiorari is not
the remedy because it is conditioned upon the
absence of an appeal or any plain, speedy, and
adequate remedy in the ordinary course of
Having no counsel in a civil case is not a
reasonable excuse to not file a pre-trial brief. It
does not also deprive one of due process. Failure
to file a pre-trial brief will have the same effect as
not appearing during pre-trial. (Saguid v. CA, G.R.
150611, 2003).
Failure to Bring Evidence During Pre-trial
Despite Notice
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. (Rule 18, Sec. 2)
6. PRE-TRIAL ORDER
Failure to Appear in Court Annexed Mediation
and Judicial Dispute Resolution
Non-appearance at court annexed mediation and
judicial dispute resolution shall be deemed as nonappearance at the pre-trial and shall merit the
same sanctions. (Rule 18, Sec. 3)
5. PRE-TRIAL BRIEF; EFFECT OF FAILURE
TO FILE
Filing and Contents of the Pre-trial Brief
A pre-trial brief is required to be filed at least three
(3) calendar days before the date of the pre-trial
conference and it must also be served on the
adverse party. (Rule 18, Sec. 6).
The pre-trial brief shall contain the following:
1. A concise statement of the case and the reliefs
prayed for;
2. A summary of admitted facts and proposed
stipulation of facts;
3. The main factual and legal Issues to be tried or
resolved;
4. The propriety of referral or factual issues to
commissioners;
5. The documents or other object evidence to be
marked, stating the purpose thereof;
6. The names of witnesses, and the summary of
their respective testimonies; and
Effect of Failure to File a Pre-Trial Brief
Failure to file the pre-trial brief shall have the same
effects as failure to appear at the pre-trial. (Rule
18, Sec. 6).
Contents of Pre-Trial Order
Upon termination of the pre-trial, the court shall
issue an order within ten (10) calendar days which
shall recite in details the matters taken up during
the pre-trial. This shall include:
1. An enumeration of the admitted facts;
2. The minutes of the pre-trial conference;
3. The legal and factual issue/s to be tried;
4. The he applicable law, rules, and jurisprudence;
5. The evidence marked
6. The specific trial dates for continuous trial,
which shall be within the period provided for by
the Rules
7. 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 settings the trial dates
8. A statement that the one-day examination of
witness rules and most important witness rule
under the Guidelines for Pre-Trial (AM 3-1-9SC) shall be strictly followed; and
9. A statement that the court shall render judgment
on the pleadings or summary judgment, as the
case may be. (Rule 18, Sec. 7).
Use of Judicial Affidavits
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. (Rule 18, Sec. 7).
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Postponements of the Presentation of the
Witnesses of the Parties
The postponement of presentation of the parties’
witnesses is prohibited, except if it is based on:
a. Acts of God;
b. Force Majeure; or
c. Duly substantiated physical inability of the
witness to appear and testify.
The party who causes the postponement is
warned that the presentation of its evidence must
still be terminated within the remaining dates
previously agreed upon. (Rule 18, Sec. 7).
Failure to Appear During Presentation of
Witnesses Without Valid Cause
Should the opposing party fail to appear during the
scheduled dates of presentation of the parties’
witnesses without valid cause, the presentation of
the scheduled witness will proceed with the absent
party being deemed to have waived the right to
interpose objection and conduct
crossexamination. (Rule 18, Sec. 7)
7. DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE AND PRE-TRIAL IN A CRIMINAL
CASE
Commencement
IN CIVIL CASES
Pre-trial is set after the last responsive
pleading has been served and filed.
The branch clerk of court shall issue,
within 5 calendar days from filing, a
notice of pre-trial.
As to purpose
Among others, it considers the
possibility of an amicable settlement.
As
to
matters
discussed
Minutes of each pre-trial conference
shall contain matters taken up therein,
more particularly admissions of facts
and exhibits and shall be signed by the
parties and/or their counsel. (AM 3-19-SC)
Shall set forth in detail: an enumeration
of the admitted facts, the minutes of
the pre-trial conference, legal and
factual issue/s to be tried, applicable
law,
rules,
and
jurisprudence,
evidence marked, specific trial dates
for continuous trial, which shall be
within the period provided for by the
Rules, 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 settings the trial dates, a statement
that the one-day examination of
witness rules and most important
As to
Order
Pre-Trial
IN CRIMINAL CASES
Pre-trial is ordered by the court after
arraignment and within thirty (30) days
from the date the court acquired
jurisdiction over the person of the
accused (either through voluntary
surrender or arrest).
NO MOTION to set the case for pretrial is required.
Among others, it considers the
possibility of a plea bargaining.
Agreements or admissions made or
entered during the pre-trial conference
shall be reduced in writing and signed
by BOTH the accused and counsel;
otherwise, they cannot be used against
the accused.
Shall set forth the actions taken during
the pre-trial conference, the facts
stipulated, the admissions made,
evidence marked, the number of
witnesses to be presented and the
schedule of trial.
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As
to
appearance
parties
nonof
As to requirement
of pre-trial brief
witness rule under AM 3-1-9-SC shall
be strictly followed, and a statement
that the court shall render judgment on
the pleadings or summary judgment,
as the case may be.
Sanction of the court for plaintiff or his
or her counsel is the action’s dismissal,
with prejudice. As for defendant or his
or her counsel, court may allow plaintiff
to present his or her evidence ex-parte.
It shall also result in the waiver of any
objections to the faithfulness of the
reproductions marked, or their
genuineness and due execution.
Specifically required (Sec. 6, Rule 18)
Referral Of Some Cases For Court Annexed
Mediation And Judicial Dispute Resolution
After pre-trial and, after issues are joined, the court
shall refer the parties for mandatory court-annexed
mediation. (Rule 18, Sec. 8).
The diversion of pending court cases both to
Court-Annexed Mediation (CAM) and to Judicial
Dispute Resolution (JDR) is plainly intended to
put an end to pending litigation through a
compromise agreement of the parties and
thereby help solve the ever-pressing problem of
court docket congestion. (A.M. No. 11-1-6-SCPHILJA).
Three Stages of Diversion
Court Diversion is a three-stage process
First Stage: Court-Annexed Media (CAM), where
the judge refers the parties to the Philippine
Mediation Center (PMC) for the mediation of their
dispute by trained and accredited mediators
Second Stage: Judicial Dispute Resolution (JDR),
the JDR judge sequentially becomes a mediatorconciliator-early neutral evaluator in a continuing
effort to secure a settlement. Still failing that
If the counsel for the accused or the
prosecutor does not appear at the pretrial conference, and does not offer an
acceptable excuse, the court may
impose
proper
sanctions
and
penalties.
Not specifically required.(RIANO,
2019, p. 477) The Rules do not require
the filing of a pre-trial brief but only
require attendance at a pre-trial
conference to consider the matters
stated in Sec. 1, Rule 118. (Sec. 2,
Rule 118)
second attempt, the mediator-judge must turn over
the case to another judge (a new one by raffle or
nearest/pair judge) who will try the unsettled case.
Third Stage: During the appeal where covered
cases are referred to the PMC-Appeals Court
Mediation (ACM) unit for mediation
Court-Annexed Mediation
Section 8 under the Amended Rules: CAM is a
mediation presided over by an accredited
mediator. (A.M. No. 11-1-6-SC-PHILJA)
When Conducted
After the pretrial and, after issues are joined, the
court shall refer the parties for mandatory CAM.
The period for CAM shall not exceed thirty (30)
calendar days, without further extension.
Thus, under the amended rule, it is clear that pretrial proper shall first proceed. Thereafter, the case
shall be referred to CAM and the proceedings in
CAM cannot exceed 30 calendar days. (Rule 18,
Sec. 8).
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REMEDIAL LAW
CAM Procedure (A.M. No. 11-1-6-SC-PHILJA)
1. Judge shall issue an order of mediation,
requiring the parties to appear before the
concerned PMC Unit Staff
i. Order may include a warning that sanctions
may be imposed for non-compliance
2. Individual parties are required to personally
appear for mediation.
3. Corporation, partnership, or other juridical
entities shall be represented by a ranking
corporate officer fully authorized by a Board
Resolution.
4. Parties shall proceed to select a mutually
acceptable mediator, who shall then start with
the mediation process
i. Mediator – He shall be an officer of the court
while performing his duties as such or in
connection therewith
5. Initial Conference – Mediator shall explain to
both parties the mediation process, stressing
the benefits of an early settlement
6. Mediator may hold separate caucuses to
determine real interests.
7. Mediator shall not record the proceedings of the
joint conferences or separate caucuses. No
transcript or minutes; no personal notes.
Should such exist, it shall not be admissible as
evidence.
8. If not settled – refer back to the judge.
If Settlement is Reached in CAM (A.M. No. 111-6-SC-PHILJA)
1. Draft a compromise agreement which shall be
submitted the court
2. Where compliance is forthwith made, the parties
shall instead submit a satisfaction of claims or
a mutual withdrawal, thereafter, the court shall
order a dismissal
Under the Consolidated and Revised Guidelines to
Implement the Expanded Coverage of CourtAnnexed Mediation and Judicial Dispute
Resolution, A.M. No. 11-1-6-SC-PHILJA, an
extended period of another 30 days may be
granted by the court, upon motion filed by the
Mediator, with the conformity of the parties. It
appears that this will no longer apply as the rule
categorically states that the mediation shall not
exceed 30 calendar days without further
extension.
Under the Consolidated and Revised Guidelines to
Implement the Expanded Coverage of CourtAnnexed Mediation and Judicial Dispute
Resolution, A.M. No. 11-1-6-SC-PHILJA, first level
courts had a period of 30 days will second level
courts had 60 days, to conduct JDR. A longer
period could be granted upon the discretion of the
JDR judge if there is high probability of settlement
and upon joint written motion of the parties. Now,
with the amendment, the period is shortened, and
it is non-extendible.
Failure to Appear in CAM
Non-appearance in CAM is deemed as nonappearance at the pre-trial. (Rule 18, Sec. 3).
Cases Subject to Mediation for CAM & JDR
1. All civil cases
2. Settlement of estates
3. Cases covered by the Summary Procedure,
except:
i. Traffic violations
ii. Violation of municipal or city ordinances
If Partial Settlement is Reached in CAM (A.M.
No. 11-1-6-SC-PHILJA)
1. Parties shall submit the terms thereof with
appropriate action of the court, without waiting
for resolution of the unsettled part
2. With regard to the unsettled part, the court shall
proceed to conduct JDR proceedings
Judicial Dispute Resolution
JDR is a mediation presided over by the judge.
(A.M. No. 11-1-6-SC-PHILJA)
When Conducted
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. JDR shall be
conducted within a non-extendible period of
fifteen (15) calendar days from notice of failure of
the court annexed mediation (Rule 18, Sec. 9).
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4.
REMEDIAL LAW
Cases
cognizable
by
the
Lupong
Tagapamayapa
5. Civil aspect of BP22 (bouncing checks) cases
6. Civil aspect of quasi-offenses
7. Civil aspect of estafa and libel
8. Civil aspect of theft
9. Civil aspect of less grave offenses punishable
by correctional penalties not exceeding 6 years
imprisonment, where the offended person is a
private person
10. All civil cases and probate proceedings, testate
or intestate, brought on appeal from the original
jurisdiction of first level courts
11. All cases of forcible entry and unlawful detainer
brought on appeal from the exclusive and
original jurisdiction of first level courts
12. All cases involving title to or possession of real
property or an interest therein brought on
appeal from the exclusive and original
jurisdiction of first level courts
13. All habeas corpus cases decided by the first
level courts in the absence of the RTC judge,
that are brought on appeal.
(A.M. No. 11-1-6-SC-PHILJA)
impartial evaluation of the chances of each
party’s success.
5. On the basis of the evaluation, the judge
persuades the parties to a fair and mutually
acceptable settlement.
6. Cases may be referred to JDR even during the
trial stage upon written motion of one or both
parties indicating willingness to discuss a
possible compromise. (A.M. No. 11-1-6-SCPHILJA)
Cases Not Subject to Mediation for CAM & JDR
(A.M. No. 11-1-6-SC-PHILJA)
1. Civil Cases which by law cannot be
compromised (Art. 2035, New Civil Code)
2. Other criminal cases
3. Habeas corpus petitions
4. All cases under RA 9262 (VAWC)
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions
Failure to Appear in JDR
Non-appearance in JDR is deemed as nonappearance at the pre-trial. (Rule 18, Sec. 3).
JDR Procedure: (A.M. No. 11-1-6-SC-PHILJA)
This part will be handled by the JDR judge (who is
different from the trial judge).
1. JDR judge briefs the parties and counsels of the
CAM and JDR processes.
2. All incidents and motions filed during the first
stage shall be dealt with by the JDR judge.
3. As mediator and conciliator, the judge facilitates
the settlement discussion between the parties
and tries to reconcile their differences.
4. As a neutral evaluator, the judge assesses the
relative strengths and weaknesses of each
party’s case and makes a non-binding and
If Settlement is reached in JDR (A.M. No. 11-16-SC-PHILJA)
1. Drafting of compromise agreement w/ the
assistance of their lawyers
2. Prior to the signing, the JDR judge may opt to
explain the contents of the agreement.
3. Signing of the compromise agreements and the
filing of a joint motion to approve the
compromise.
4. Judge renders a judgment based on
compromise.
5. Copy of the judgment is sent to the Phil.
Mediation Center for statistical purposes.
Failure to Reach Settlement in JDR
If there is no full or partial settlement reached in
the JDR, the judge presiding in the JDR shall turn
over the case to the trial judge, determined by reraffle in multiple sala courts or to the originating
court in single sala courts, as the case may be, to
conduct pre-trial proper (XII, A.M. No. 11-1-6-SCPHILJA)
Note that judicial affidavit shall be submitted 5
days prior the pre-trial.
If JDR fails, trial before the original court shall
proceed on the dates agreed upon. (Rule 18, Sec.
9)
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REMEDIAL LAW
Judgment After Pre-Trial
Nature
AM NO. 0110-5-SCPHILJA
Mandatory –
after
CAM,
parties
are
immediately
referred
to
JDR
for
settlement
Confidential
Judge of court
where
case
was originally
raffled
Conducted
by
Period
Successful
JDR
Failed
JDR
JDR
judge
acts
as
mediatorconciliator
–
early neutral
evaluator
First
level
courts – 30
days
Second level
courts – 60
days
Parties submit
a compromise
agreement to
the court, for
approval.
Court to issue
judgment
based
on
compromise
agreement
If JDR fails,
JDR
is
terminated and
case is reraffled
to
another court
to
proceed
with pre-trial
2019
AMENDMENT
S
Discretionary –
after
CAM,
parties
are
referred
to
JDR if judge is
convinced that
settlement is
possible
Confidential
Judge
of
another court
within
the
same
jurisdiction
JDR judge acts
as mediatorconciliator
–
early neutral
evaluator
Nonextendible
period of 15
calendar days
counted from
notice of failure
of CAM
Parties submit
a compromise
agreement to
the court, for
approval.
Court to issue
judgment
based
on
compromise
agreement
JDR
is
terminated and
case
is
referred back
to court of
origin
to
proceed to trial
The court shall 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,
should there/it be:
1. No more controverted facts;
2. No more genuine issue as to any material fact;
3. Absence of an issue; or
4. That the answer fails to tender an issue.
This is without prejudice to a party moving for
judgment on the pleadings or summary judgment.
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)
K. INTERVENTION
Nature of Intervention
Intervention is a remedy by which a third party,
who is not originally impleaded in a proceeding,
becomes a litigant for purposes of protecting his or
her right or interest that may be affected by the
proceedings. (Neptune Metal Scrap Recycling,
Inc. v. Manila Electric Co., G.R. No. 204222, July
4, 2016).
Its main purpose is to settle in one action and by a
single judgment all conflicting claims of, or the
whole controversy among, the persons involved.
(Office of the Ombudsman vs. Maximo Sison, G.R.
185954, Feb. 16, 2010)
A complaint-in-intervention can’t be treated as an
independent action as it is merely ancillary to and
a supplement upon the principal action. The
complaint-in-intervention essentially latches on
the complaint for its legal efficacy so much so that
the dismissal of the complaint leads to its
concomitant dismissal. (Sta. Rita Co v. Angeline
Gueco, G.R. 193087, 2013),
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Although as a rule, when the main action ceased
to exist, there is no pending proceeding whereon
the intervention may be based. In the case at bar,
however, there was no such final or complete
dismissal but rather an approval of a compromise
agreement which was embodied in what was
specifically designated as a 'Partial Decision'
affecting only the interests of herein petitioner and
the defendant in said case but not those of her coplaintiff municipality and the intervenor. (Camacho
v. CA, G.R. No. 79564, Nov. 24, 1989).
Who May Intervene
The following persons may intervene:
1. Those having a legal interest in the matter in
litigation;
2. Those having legal interest in the success of
either of the parties;
3. Those having an interest against both parties;
or
4. A party that is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an
officer thereof. (Sec. 1, Rule 19).
Legal Interest
The interest contemplated by law must be actual,
substantial, material, direct and immediate, and
not simply contingent or expectant. It must be of
such direct and immediate character that the
intervenor will either gain or lose by the direct legal
operation and effect of the judgment. (Asia's
Emerging Dragon Corp. v. Department of
Transportation and Communications, G.R. Nos.
169914 & 174166, Mar. 24, 2008)
A law firm whose services were unjustly
terminated was allowed to intervene in the case
despite the compromise agreement between the
parties. (Czarina Malvar v. Kraft Foods, G.R.
183952, 2013)
Motion to Intervene Improper When Case is
Already Moot
Motion to intervene is improper when the case is
already moot. A case is moot when a supervening
event has terminated the legal issue between the
parties, such that this Court is left with nothing to
REMEDIAL LAW
resolve. There is no longer anything that would
affect the petitioner's alleged right. Thus, as far as
its intervention is concerned, it no longer has any
standing. (Express Telecommunications Co., Inc.
v. AZ Communications, Inc. Clemente v. Status
Maritime Corp, G.R. No. 196902, 2020)
Subject to Discretion of the Court
The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be
fully protected in a separate proceeding. (Sec. 1,
Rule 19).
The trial court must not only determine if the
requisite legal interest is present, but also take into
consideration the delay and the consequent
prejudice to the original parties that the
intervention will cause. Both requirements must
concur, as the first requirement on legal interest is
not more important than the second requirement
that no delay and prejudice should result. To help
ensure that delay does not result from the granting
of a motion to intervene, the Rules also explicitly
say that intervention may be allowed only before
rendition of judgment by the trial court. (Lorenza C.
Ongco vs Valeriana Ungco Dalisay, G.R. No.
190810, Jul. 18, 2012).
Pleadings-in-intervention
If the purpose of the motion for intervention is to
assert a claim against either or all of the original
parties, the pleading shall be called a
COMPLAINT-IN-INTERVENTION. Meanwhile, if
the purpose is to unite with the defending party in
resisting a claim against the latter, the pleading is
called an ANSWER-IN-INTERVENTION. (Rule
19, Sec. 3)
Procedure for Intervention
1. The motion for intervention must be filed before
judgment (Sec. 2, Rule 19);
2. A copy of the pleading-in-intervention shall be
attached to the motion and served on the
original parties. (Sec. 2, Rule 19).
3. The answer to the complaint-in-intervention
shall be filed within 15 calendar days from the
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intervention, unless otherwise fixed by the
court. (Sec. 4, Rule 19).
1. REQUISITES FOR INTERVENTION
Requisites for Intervention
The intervention shall be allowed when:
1. A person has legal interest:
a. In the matter in litigation;
b. In the success of any of the parties;
c. An interest against the parties; or
d. He is so situated as to be adversely affected
by a distribution or disposition of property in
the custody of the court or an officer thereof.
(Rule 19, Sec. 1, Mactan-Cebu International
Airport Authority v. Heirs of Miñoza, G.R.
No. 186045, Feb. 2, 2011)
2. The intervention will not unduly delay or
prejudice the adjudication of the rights of the
original parties; and
3. The intervenor’s rights may not be fully
protected in a separate proceeding.
(Asia's Emerging Dragon Corp. v. Department of
Transportation and Communications, G.R.
Nos. 169914 Mar. 24, 2008).
2. TIME TO INTERVENE
General Rule: The motion to intervene may be
fied at any time before rendition of judgment by
the trial court. (Sec. 2, Rule 19).
Exceptions:
1. With respect to indispensable parties,
intervention may be allowed even on appeal.
2. When the intervenor is the Republic.
3. Where intervention is necessary to protect some
interest which cannot otherwise be protected,
and for the purpose of preserving the
intervenor’s right to appeal. (FERIA, 2013, p.
572).
3. REMEDY OF DENIAL OF MOTION TO
INTERVENE
Intervention results in an interlocutory order
ancillary to a principal action. Its grant or denial is
subject to the sound discretion of the court.
Interlocutory orders, or orders that do not make a
final disposition of the merits of the main
REMEDIAL LAW
controversy or cause of action, are generally not
reviewable. The only exception is a limited one, in
that when there is no plain, speedy, and adequate
remedy, and where it can be shown that the court
acted without, in excess, or with such grave abuse
of discretion that such action ousts it of jurisdiction.
Thus, certiorari may lie. (E.I. Dupont De Nemours
and Co. v. Francisco, G.R. No. 174379, Aug. 31,
2016).
L. SUBPOENA
1. SUBPOENA DUCES TECUM
It is a process directed to a person requiring him
to bring with him or her books, documents, or other
things under his or her control at a scheduled
hearing (Sec. 1, Rule 21).
Tests for a Valid Subpoena Duces Tecum
In determining whether the production of the
documents described in a subpoena duces tecum
should be enforced by the court, it is proper to
consider:
1. Whether the subpoena calls for the production
of specific documents, or rather for specific
proof (test of definiteness); and
2. Whether that proof is prima facie sufficiently
relevant to justify enforcing its production (test
of relevancy). (FERIA, 2013, p. 578 citing
Liebenow v. Philippine Vegetable Oil Co., G.R.
No. 13463, Nov. 9, 1918).
2. SUBPOENA AD TESTIFICANDUM
A process directed to a person, requiring him or
her to attend and to testify at a hearing or trial of
an action, or at any investigation conducted by a
competent authority, or for the taking of his or her
deposition (Sec. 1, Rule 21).
The subpoena duces tecum is like the ordinary
subpoena ad testificandum with the exception that
it concludes with an injunction that the witness
shall bring with him and produce at the
examination the books, documents, or things
described in a subpoena. (Roco v Contreras, G.R.
158275, Jun. 28, 2005).
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Absent any proceedings, suit, or action
commenced or pending before a court, a
subpoena may not issue (Collado v. Bravo, A.M.
P-99-1307, Apr. 10, 2001).
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. (Sec. 7, Rule 21).
3. SERVICE OF SUBPOENA
Who May Issue a Subpoena
A subpoena may be issued by:
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 issue a
subpoena in connection with investigations
conducted by said officer of body; or
4. Any justice of the Supreme Court or of the Court
of Appeals in any case or investigation pending
within the Philippines. (Sec. 2, Rule 21).
Service of Subpoena to Prisoners
Before a subpoena is issued to compel a prisoner
to testify, the judge or officer shall examine and
study carefully the application if it is for a valid
purpose. (Id.).
If the prisoner is sentenced to death, reclusion
perpetua or life imprisonment and is confined in
any penal institution, he shall not be brought
outside the penal institution for appearance or
attendance in any court unless authorized by the
Supreme Court. (Id.).
Subpoena for Depositions
Proof of service of a notice to take a deposition, as
provided in Sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the
deposition is to be taken.
REMEDIAL LAW
The clerk shall not, however, issue a
subpoena duces tecum to any such person
without an order of the court. (Sec. 5, Rule 21).
Form and Contents of a Subpoena
A subpoena:
1. Shall state the 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 a subpoena duces tecum, it shall contain a
reasonable description of the books, documents or
things demanded which must appear to the court
prima facie relevant. (Sec. 3, Rule 21).
How Subpoena is Served
Service of subpoena shall be made:
1. In the same manner as personal or
substituted service of summons;
2. The original must be exhibited, and a copy
delivered to the person on whom it is served;
3. Service must be made as to allow the witness
a reasonable time for preparation and travel
to the place of attendance; and
4. Costs for court attendance and production
of documents and other materials subject of the
subpoena shall be tendered or charged
accordingly. (Sec. 6, Rule 21).
The failure of a server to pursue substituted
service after a frustrated attempt to personally
serve the complainant a copy of the subpoena
constitutes simple neglect of duty. (Macaspec v.
Flores, A.M. No. P-05-2072, Aug. 13, 2008).
4. COMPELLING ATTENDANCE OF
WITNESSES; CONTEMPT
Warrant of Arrest to Compel Witness to Appear
The court which issued the subpoena may issue a
warrant to the sheriff to arrest the witness and
bring him before the court or officer upon proof of:
1. Service of the subpoena to the witness; and
2. Failure of the witness to attend. (Sec. 8, Rule
21).
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The cost of such warrant and seizure of such
witness shall be paid by the witness if the court
issuing it shall determine that:
1. The witness’s failure to answer the subpoena
was willful; and
2. He has no just excuse for such failure. (Id.).
Note that the above is only applicable for a
subpoena ad testificandum and not subpoena
duces tecum. (Id.).
A judge may issue a warrant of arrest against a
witness simply upon proof that the subpoena had
been served upon him but he failed to attend the
hearing. The purpose is to bring the witness before
the court where his attendance is required, not to
punish him for contempt which requires a previous
hearing. (Pagdilao, Jr. v. Angeles, A.M. No. RTJ99-1467, Aug. 5, 1999).
Punishment for Failure to Obey Subpoena
If a subpoena issued by a court and duly served
is disobeyed without adequate cause, his or her
failure to obey shall be deemed contempt of court.
(Sec. 9, Rule 21).
If a subpoena is not issued by the court, the
disobedience thereto shall be punished in
accordance with the applicable law or Rule. (Id.).
Note that this applies to both types of subpoenas
(Id.).
Only a judicial officer and quasi-judicial officer
specifically authorized by law can exercise the
power of contempt in relation to subpoena.
(Nazareno v. Barnes, G.R. No. 59072, Apr. 25,
1984).
Exceptions from Arrest or Punishment for
Disobedience:
The arrest, contempt, or any other punishment by
any law or Rule shall not apply when:
1. Witness resides more than 100 km away from
the place where he is to testify.
This applies only to civil and not to criminal
cases (Genorga v Quitain, AM No CFI -891,
Jul. 21, 1977; Rule 119, Sec. 14; & Rule 115,
sec. 1 par. (g)).
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2. Witness is a detention prisoner and there was
no permission obtained from the court in which
the case is pending (Sec. 10, Rule 21).
5. QUASHING A SUBPOENA
Quashing a Subpoena Duces Tecum
To quash a subpoena duces tecum, the following
must be met:
1. A proper motion must be filed with the court;
2. The motion must be promptly made before or at
the time specified in the subpoena; and
3. The quashal must be based on the following
grounds:
a. The subpoena is unreasonable and
oppressive;
b. The relevancy of the books, documents, or
things sought to be produced does not
appear;
c. The person in whose behalf the subpoena
was issued failed to advance the
reasonable cost of the production; or
d. The person in whose behalf the subpoena
was issued failed to tender witness fees and
kilometrage. (Sec. 4, Rule 21).
Only a subpoena duces tecum may be quashed
on the ground that it is oppressive or unreasonable
because it has a tendency to infringe on the right
to privacy. (Lee v. CA, G.R. No. 177861, Jul. 13,
2010).
Quashing a Subpoena Ad Testificandum
To quash a subpoena ad testificandum, the
following must be met:
1. A proper motion must be filed with the court;
2. The motion must be promptly made before or at
the time specified in the subpoena; and
3. The quashal must be based on the following
grounds:
a. The witness is not bound thereby; or
b. The person in whose behalf the subpoena
was issued failed to tender witness fees and
kilometrage. (Sec. 4, Rule 21).
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Summary of Grounds for Quashal of Subpoena
SUBPOENA DUCES
SUBPOENA AD
TECUM
TESTIFICANDUM
It is unreasonable and The witness is not
oppressive
bound
by
such
Relevancy
of
the subpoena
books, documents or
things
does
not
appear
When the witness fees and kilometrage allowed
by the Rules were not tendered when the
subpoena was served
M. COMPUTATION OF TIME
How to Compute Time
In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or
by any applicable statute, the following rules shall
be followed:
1. The day of the act or event from which the
designated period of time begins to run is to be
excluded;
2. The date of performance included; and
3. The last day of the period shall not run until the
next working day if it falls on:
a. Saturday;
b. Sunday; or
c. A legal holiday (Sec. 1, Rule 22).
Section 1, Rule 22 provides that when the last day
on which a pleading is due falls on a Saturday,
Sunday, or legal holiday, time shall not run until the
next working day. This rule speaks only of "the last
day of the period," so that when a party seeks 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 of time to file the
required pleading should therefore be counted
from the expiration of the original period
regardless of the fact that said due date is a
Saturday, Sunday or legal holiday. (Reinier Pacific
International Shipping, Inc. v. Guevarra, G.R. No.
157020, Jun. 19, 2013).
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Effect of Interruption
If an act was done which interrupts the running of
the period, the allowable period after such
interruption shall start to run on the day after
notice of the cessation of the cause thereof.
(Sec. 2, Rule 22).
The day of the act that caused the interruption
shall be excluded in the computation of the
period. (Id.).
N. MODES OF DISCOVERY
Purpose of Rules of Discovery
The broad purpose of discovery procedures is to
permit mutual knowledge before trial of all relevant
facts gathered by both parties so that either party
may compel the other to disgorge facts whatever
he has in his possession. In the practical sense,
the modes of discovery are designed to serve as
an additional device for settlement aside from a
pre-trial. (RIANO, 2019, p.479).
Modes of Discovery Under the Rules of Court
The following are the modes of discovery under
the Rules of Court:
1. Depositions pending action (Rule 23);
2. Depositions before action or pending appeal
(Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents or things
(Rule 27);
6. Physical and mental examination of persons
(Rule 28);
Discovery Still Applies Even if Motion For Bill
of Particulars Was Denied
That the matters on which discovery is desired are
the same matters subject of a prior motion for bill
of particulars and denied for lack of merit is beside
the point. A bill of particulars may elicit
only ultimate facts, not evidentiary facts. The latter
are without doubt a proper subject of discovery.
(Republic v. Sandiganbayan, G.R. No. 90478,
1991).
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Order Requiring the Availment of Modes of
Discovery
Trial courts are directed to issue orders requiring
parties to avail of interrogatories to parties under
Rule 25 and request for admission of adverse
party under Rule 26 or other measures under
Rules 27 and 28 within five days from filing of the
answer.
The parties are likewise required to submit, at least
3 days before the pre-trial, pre-trial brief,
containing among others a manifestation of the
parties having of their having availed or their
intention to avail themselves of discovery
procedures or referral to commissioners. (A.M. No.
03-01-09-SC).
1. DEPOSITIONS PENDING ACTION;
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
a. Meaning Of Deposition
Deposition
A deposition is the testimony of a witness taken
upon oral question or written interrogatories, not in
open court, but in pursuance of a commission to
take testimony issued by a court, or under a
general law or court rule on the subject, and
reduced to writing and duly authenticated, and
intended to be used in preparation and upon the
trial of a civil or criminal prosecution. (People vs.
Webb, G.R. No. 176389, 1999).
It is a testimony of a witness, taken in writing,
under oath or affirmation, before some judicial
officer in answer to questions or interrogatories.
(People v. Webb, G.R. No. 132577, 1999).
It is a way for either party to compel the other to
disgorge whatever facts he has in his possession.
(Republic v. Sandiganbayan, G.R. No. 90478,
1991).
From Whom And When Depositions Taken
For depositions pending action or appeal, the
testimony of any person, whether a party or not,
may be taken by deposition upon ex parte motion
of a party. For persons confined in prison, their
REMEDIAL LAW
depositions may be taken only by leave and under
such terms of the court. (Sec. 1, Rule 23).
Note: the 2019 Amendments deleted the phrase
“By leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or without such
leave after an answer has been served…” Thus,
the requirement of leave of court is now replaced
with an ex parte motion.
For depositions before action, the testimonies of
the following may be taken by deposition:
a. Any person who wants to perpetuate his/her
own testimony; or
b. Any person who wants to perpetuate the
testimony of another person.
Such person may perpetuate his/her testimony or
that of another by filing a verified petition in the
court of the place of the residence of any expected
adverse party. (Sec. 1, Rule 24)
A non-resident foreign corporation may request for
depositions, whether oral or written. (San Luis v.
Rojas, G.R. No. 159127, 2008).
Before Whom Taken
No deposition shall be taken before:
a. A person who is a relative within the sixth
degree of consanguinity or affinity of any of the
parties;
b. An employee or counsel of any of the parties;
c. An employee or relative of such counsel within
the same degree in no. 1; and
d. A person financially interested in the action.
(Sec. 13, Rule 23).
Within the Philippines, depositions may be taken
before:
a. Any judge;
b. A notary public; or
c. If the parties so stipulate in writing, before any
person authorized to administer oaths. (Rule
23, Secs. 10 and 14).
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REMEDIAL LAW
Outside the Philippines, depositions may be taken
before:
a. A secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent
of the Republic of the Philippines;
b. Such person or officer as may be appointed by
commission or letters rogatory; or
c. If the parties so stipulate in writing, before any
person authorized to administer oaths. (Rule
23, Secs. 10 and 14).
That neither the presiding judge nor the parties will
be able to personally examine and observe the
conduct of a deponent does not justify denial of the
right to take deposition. This objection is common
to all depositions. Allowing this reason will render
nugatory the provisions in the Rules of Court that
allow the taking of depositions. The parties may
also well agree to take deposition by written
interrogatories to afford petitioners the opportunity
to cross-examine. (Santamaria v. Cleary, G.R.
Nos. 197122 &197161, June 15, 2016).
A commission or letters rogatory shall be issued
only:
1. When necessary or convenient;
2. On application or notice; and
3. On such terms as may be just and appropriate.
(Rule 23, Sec. 12).
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 before
the former, a witness
who is within the
jurisdiction of
the
judge where the letters
are addressed.
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 (Dasmarinas
Garments, Inc. vs.
Reyes,
G.R.
No.
108229, 1993).
LETTERS
ROGATORY
Methods of procedure
are under the control
of the foreign tribunal.
COMMISSION
Taken in accordance
with the rules laid
down by the court
issuing
the
commission.
(Dulay v. Dulay, G.R. No. 158857, 2005).
Effect of Taking and Using Deposition
General Rule: A party shall not be deemed to
make a person his/her own witness for any
purpose by taking his/her deposition (Rule 23,
Sec. 7).
Exception: When the deposition is introduced in
evidence, then he/she will be deemed to have
made the deponent his/her witness. (Rule 23, Sec.
8)
Exception to the exception: The exception will not
apply if the deposition used is that of an opposing
party or the deposition is used to impeach or
contradict the deponent i.e., the deponent is still
not a witness of the party taking the deposition.
While depositions may be used as evidence in
court proceedings, they are generally not meant to
be a substitute for the actual testimony in open
court of a party or witness. A deposition is not to
be used when the deponent is at hand. (Sales v.
Sabino, G.R. No. 133154, 2005).
Oral Depositions
A party desiring to take the deposition of any
person upon oral examination shall:
1. Give reasonable notice in writing to every other
party to the action;
2. The notice shall state the time and place for
taking the deposition and the name and
address of each person to be examined, if
known;
3. And if the name is not known, a general
description sufficient to identify him or the
particular class or group to which he belongs.
On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or
shorten the time (Rule 23, Sec. 15).
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Process of Deposition
1. The officer before whom the deposition is to be
taken shall put the witness on oath and shall
personally, or by anyone authorized in his
presence, record the testimony of the witness.
(Rule 23, Sec.17);
2. The testimony shall be taken stenographically.
(Rule 23, Sec. 17);
3. All objections made at the time of the
examination to the qualifications of the officer
or on any matters regarding the proceedings
shall be merely NOTED by the officer upon the
deposition. (Rule 23, Sec. 17);
4. When the testimony is fully transcribed, the
deposition shall be submitted to the witness for
examination and shall be read to or by him,
unless waived and the witness will then sign the
deposition. (Rule 23, Sec. 19);
5. If the deposition is not signed by the witness, the
officer shall sign it and state on record the
reason of non-signing. (Rule 23, Sec. 19);
6. The officer shall certify on the deposition that the
witness was duly sworn by him and that the
deposition is a true record of the testimony
given by the witness. He shall then securely
seal the deposition in an envelope with the title
of the action and marked as a deposition and
shall promptly file it to the court and shall
promptly file if with the court in which the action
is pending or send it by registered mail to the
clerk thereof for filing. (Rule 23, Sec. 20); and
7. The officer taking the deposition shall give
prompt notice of its filing to all the parties. (Rule
23, Sec. 21)
When the deposition was taken inside the
courtroom by the clerk of court in the presence of
the parties and their lawyers, and the entire
proceedings
was
transcribed
by
the
stenographers of the court, the requirements that
the deposition has to be sealed, examined and
signed by the deponent, and also certified, sealed
and signed by the deposition officer would be, to
the mind of the court, already superfluous. (Ayala
Land Inc. v. Tagle, G.R. No. 153667 Aug. 11,
2005).
In order for petitioners to exercise the right to
refuse to take the witness stand and to give their
REMEDIAL LAW
depositions, the case must partake of the nature
of a criminal proceeding. The fact that there are
two criminal cases pending which are allegedly
based on the same set of facts as that of this civil
case will not give them the right to refuse to take
the witness stand and to give their depositions.
Hence, like an ordinary witness, they can invoke
the right against self-incrimination only when the
incriminating question is actually asked of them.
(Rosete v. Lim G.R. No. 136051, Jun. 8, 2006).
Depositions By Written Interrogatories
A deposition need not be conducted through oral
examination. It may be conducted through written
interrogatories. (Rule 23, Sec. 1).
A party desiring to take the deposition of any
person upon written interrogatories shall serve
them upon every other party with a notice stating:
1. The name and address of the person who is
to answer them;
2. The name or descriptive title and address of the
officer before whom the deposition is to be
taken. (Rule 23, Sec 25).
A copy of the notice and copies of all
interrogatories served shall be delivered by the
party taking the deposition to the officer
designated in the notice, who shall proceed
promptly, to take the testimony of the witness in
response to the interrogatories. (Rule 23, Sec. 26).
It shall also be the duty of the officer designated to
prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the
interrogatories received by him or her. (Rule 23,
Sec. 26).
When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice thereof
to all the parties and may furnish copies to them or
to the deponent upon payment of reasonable
charges therefor. (Rule 23, Sec. 27).
Within ten (10) calendar days thereafter, a party so
served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five
(5) calendar days thereafter the latter may serve
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redirect interrogatories upon a party who has
served cross-interrogatories. (Rule 23, Sec. 25).
Within three (3) calendar days after being served
with redirect interrogatories, a party may serve
recross-interrogatories upon the party proposing
to take the deposition. (Rule 23, Sec. 25).
Orders for Protection of Parties and Deponents
After notice is served for taking a deposition by
oral examination, upon motion seasonably made
by any party or by the person to be examined and
for good cause shown, the court in which the
action is pending may make the following
orders:
a. That the deposition shall not be taken;
b. That the deposition may be taken only at some
designated place other than that stated in the
notice;
c. That the deposition may be taken only on
written interrogatories;
d. That certain matters shall not be inquired into;
e. That the scope of the examination shall be held
with no one present except the parties to the
action and their officers or counsel;
f. That after being sealed the deposition shall be
opened only by order of the court;
g. That secret processes, developments, or
research need not be disclosed; or
h. 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)
NOTE: This is the remedy BEFORE taking the
deposition
At any time during the taking of the deposition, on
motion or petition of any party or of the deponent
and upon a showing that:
a. The examination is being conducted in bad faith;
or
b. In such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party.
REMEDIAL LAW
The court in which the action is pending or the
Regional Trial Court of the place where the
deposition is being taken may order the officer
conducting the examination to:
a. Cease forthwith from taking the deposition; or
b. May limit the scope and manner of the taking of
the deposition, as provided in Section 16 of this
Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order of
the court in which the action is pending.
Upon demand of the objecting party or
deponent, the taking of the deposition shall be
suspended for the time necessary to make a
notice for an order. In granting or refusing such
order, the court may impose upon either party or
upon the witness the requirement to pay such
costs or expenses as the court may deem
reasonable. (Rule 23, Sec 18).
NOTE: This is the remedy DURING the taking of
deposition)
After the service of the interrogatories and prior
to the taking of the testimony of the deponent,
the court in which the action is pending, on motion
promptly made by a party or a deponent, and for
good cause shown, may make any order specified
in Sections 15, 16 and 18 of this Rule which is
appropriate and just or an order that the deposition
shall not be taken before the officer designated in
the notice or that it shall not be taken except upon
oral examination. (Rule, 23, Sec 28)
NOTE: This is the remedy for BEFORE the taking
of
DEPOSITION
THROUGH
WRITTEN
INTERROGATORIES
A plain reading of this provision shows that there
are two (2) requisites before a court may issue a
protective order:
1. There must be notice; and
2. The order must be for good cause shown.
(Santamaria v. Cleary, G.R. Nos. 197122
&197161, Jun. 15, 2016).
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Depositions in Civil vs. Criminal Proceedings
1. The procedure under Rule 23 to 28 of the Rules
of Court allows the taking of depositions in civil
cases, either upon oral examination or written
interrogatories, before any judge, notary public
or person authorized to administer oaths at any
time or place within the Philippines; or before
any Philippine consular official, commissioned
officer or person authorized to administer oaths
in a foreign state or country, with no additional
requirement except reasonable notice in writing
to the other party.
2. For purposes of taking the deposition in criminal
cases, more particularly of a prosecution
witness who would foreseeably be unavailable
for trial, the testimonial examination should be
made before the court, or at least before the
judge, where the case is pending as required
by the clear mandate of Section 15, Rule 119
of the Revised Rules of Criminal Procedure.
(Go v. People, G.R. No. 185527, 2012).
Suppletory Application of Rule on Depositions
in Criminal Cases
In one case, the prosecution’s witness (Mary Jane)
is neither too sick nor infirm to appear at the trial
nor has to leave the Philippines indefinitely. To
recall, Mary Jane is currently imprisoned in
Indonesia for having been convicted by final
judgment of the crime of drug trafficking, a grave
offense in the said state. Her situation is not akin
to a person whose limitation of mobility is by
reason of ill-health or feeble age, the grounds cited
in Section 15 of Rule 119. Thus, Go v. People
(aforecited case) is not on all fours with this case.
Depositions, however, are recognized under Rule
23 of the Rules on Civil Procedure. Although the
rule on deposition by written interrogatories is
inscribed under the said Rule, the Court holds that
it may be applied suppletorily in criminal
proceedings so long as there is compelling reason.
Verily, in light of the unusual circumstances
surrounding the instant case, the Court sees no
reason not to apply the provisions of Rule 23 of the
Rules on Civil Procedure in the interest of
substantial justice and fairness. Hence, the taking
of testimony of Mary Jane through a deposition by
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written interrogatories is in order. (People v.
Sergio, G.R. No. 240053, October 9, 2019).
b. Uses And Scope Of Examination
Use of Depositions
The deposition may be used for the following
purposes:
1. For the purpose of contradicting or impeaching
the testimony of the deponent as witness by
any party;
2. If the deponent is a party or anyone who was at
the time of the deposition was an officer,
director, or managing agent of a public or
private corporation, partnership or association
which is a party, his/her deposition can be used
by an adverse party for any purpose.
3. If the deponent is a witness, whether or not a
party to the case, his/her deposition may be
used by any party for any purpose if the court
finds that:
a. The witness is dead; or
b. The witness resides at a distance more than
one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines (UNLESS it appears that his/her
absence was procured by the party offering
the deposition); or
c. The witness is unable to attend or testify
because of age, sickness, infirmity or
imprisonment; or
d. The party offering the deposition has been
unable to procure the attendance of the
witness by subpoena; or
e. Upon application and notice, that such
exceptional circumstances exist as to make
it desirable, in the interest of justice to allow
the deposition to be used.
If only part of a deposition is offered in evidence by
a party, the adverse party may require him or her
to introduce all of it which is relevant to the part
introduced, and any party may introduce any other
parts. (Rule 23, Sec. 4).
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REMEDIAL LAW
For perpetuation of testimonies before action
(depositions before action), it may be used in any
action subsequently brought involving the same
subject matter, provided:
a. It is taken in accordance with the provisions of
Rule 25; or
b. If not so taken, it remains admissible in
evidence. (Rule 24, Sec. 6).
Objections and Rebuttal of Depositions
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). Any reason that would
require the exclusion of the evidence if the witness
were then present and testifying may be used as a
reason for objection. (Rule 23, Sec. 6).
Effect of Substitutions of Parties
The substitution of parties does not affect the right
to use depositions previously taken. (Rule 23, Sec.
5).
All objections made at the time of the examination
to the qualifications of the officer taking the
deposition, manner of taking it, to evidence
presented, conduct of any party and any other
objection to the proceedings shall be NOTED by
the officer taking the deposition. (Rule 23, Sec.
17). The provision does not provide that the officer
has to rule on the objection. (RIANO, p. 486).
When an action is dismissed and another is
subsequently brought, all depositions taken in the
former action may be used in the latter action, as
if originally taken, provided:
1. The latter action involves the same parties, their
representatives, or their successors in interest;
and
2. The latter action involves the same subject as
that of the former action. (Rule 23, Sec. 5).
Against Whom Depositions May Be Used
Any part or all of the deposition, so far as
admissible under the rules of evidence, may be
used:
1. Against any party who was present or
represented at the taking of the deposition; or
2. Against one who had due notice of the
deposition. (Rule 23, Sec. 4).
Scope of Examination
The deponent may be examined regarding any
matter which is not privileged and which is
relevant to the subject of the pending action,
which may include:
i. Claim or defense of any other party;
ii. Existence, description, nature, custody,
condition and location of any books,
documents, or other tangible things; and
iii. Identity and location of persons having
knowledge of relevant facts.
c. When May Objections To Admissibility
Be Made
However, for the following errors or irregularities in
the depositions, objections must be made under
the following circumstance:
a. Errors and irregularities in the notice for taking
of the deposition are waived unless written
objection is served;
b. The disqualification of the officer before
whom it is taken is deemed waived unless
made before the taking of the deposition
begins or as soon thereafter as the
disqualification becomes known or could
be discovered with reasonable diligence;
c. Objections to the competency, relevance, or
materiality of the witness and/or testimony
are not waived when not raised during the
taking of the deposition unless such ground
have been obviated or removed if presented
at that time;
d. Same rules as above applies to oral
examinations;
e. Errors in the manner in which the deposition is
prepared is waived unless a motion to
suppress deposition is made. (Rule 23, Sec.
29).
If the ground of the objection is one which might
have been obviated or removed if presented at
that time, it should be made during the taking of
the deposition, as otherwise, it will be waived
(Gana vs. Roman Catholic Archbishop of Manila,
43 O.G. 3224).
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d. When The Taking Of Deposition May Be
Terminated Or Its Scope Limited
When and How Made
The taking of deposition may be terminated or its
scope limited at any time during the taking of the
deposition, provided:
1. It is made upon motion or petition of any party
or of the deponent; and
2. Upon showing that the examination is being
conducted in bad faith or in such manner as
unreasonably to annoy, embarrass or oppress
the deponent or party.
Upon demand of the objecting party or deponent,
the taking of the deposition shall be suspended for
the time necessary to make a notice for an order.
(Rule 23, Sec. 18).
Who May Order Limitation or Termination
The order may be made by:
a. The court in which the action is pending; or
b. The RTC of the place where the deposition is
being taken. (Rule 23, Sec. 18)
Scope of the Order
The court may order the officer conducting the
examination:
a. To cease forthwith from the taking of the
deposition;
b. To limit the scope and manner of the taking of
the deposition.
If the order terminates the action, it shall be
resumed thereafter only upon the order of the
court in which the action is pending. (Rule 23, Sec.
18)
Deposition In Perpetuam Rei Memoriam
Deposition for use in future proceedings as in the
case where it is sought before the existence of an
action or for cases on appeal. (Rule 24).
It was intended to preserve known testimony
against danger of loss. For instance, the petitioner
has a cause of action which has not yet accrued.
In such case, inasmuch as he cannot bring the
action until the cause of action accrues, he may
perpetuate his testimony or that of another person.
(Rule 24, Sec. 1)
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Contents of the Petition
1. That the petitioner expects to be a party to an
action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
2. The subject matter of the expected action and
his interest therein;
3. The facts which he desires to perpetuate;
4. The names or a description of his expected
adverse parties; and
5. The names and addresses of the persons to be
examined and the substance of the testimony.
(Rule 24, Sec. 2).
Where Petition is Filed
A person desiring to perpetuate his or her
testimony or that of another may file a verified
petition in the court of the place of the residence of
any expected adverse party. (Rule 24, Sec. 1).
Notice
The petitioner shall serve notice upon each person
named in the petition as an expect adverse party.
(Rule 24, Sec. 3).
Order and Examination
If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice,
it shall make an order designating or describing
the persons whose deposition may be taken and
specifying the subject matter of the examination
and whether the depositions shall be taken upon
oral examination or written interrogatories. (Rule,
24, Sec. 4).
Use of Deposition
It is admissible in evidence, it may be used in any
action involving the same subject matter
subsequently brought. (Rule 24, Sec. 6).
2. WRITTEN INTERROGATORIES TO
ADVERSE PARTIES
Purpose of Written Interrogatories
Upon ex parte motion, any party desiring to elicit
material and relevant facts from any adverse party
shall file and serve, upon the latter, written
interrogatories. (Rule 25, Sec. 1).
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But no party may serve more than one set of
interrogatories to be answered by the same party
without leave of court. (Rule 25, Sec. 4).
Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a
party not served with written interrogatories may
not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal. (Sps. Afulugencia v. Metrobank,
G.R. No. 185145, February 5, 2014)
Since the calling party is deemed bound by the
adverse party’s testimony, compelling the adverse
party to take the witness stand may result in the
calling party damaging its own case. Another
reason for the rule is that by requiring prior written
interrogatories, the court may limit the inquiry to
what is relevant, and thus prevent the calling party
from straying or harassing the adverse party when
it takes the latter to the stand. (Id.).
Use and Scope of Written Interrogatories
The use and scope of written interrogatories are
the same with that of depositions. (Rule 25, Sec.
5, see Rule 23, Secs. 2 and 4).
Answer to Interrogatories
The written interrogatories shall be answered by:
a. The party served; or
b. If the party served is a corporation, partnership,
or association which is a party, any officer
thereof competent to testify. (Rule 25, Sec. 1).
The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the
person making them. Such answer shall be filed
and served to the party submitting the
interrogatory within fifteen (15) days from service
of such interrogatories unless the court on motion
and for good cause extends or shortens the time.
(Rule 25, Sec. 2).
Considering that the case is in the crossexamination stage already, the use of written
interrogatories will not serve its purpose anymore.
It cannot aid in the preparation and speedy
disposition of the pending case. Instead, it will only
cause further delay in the proceedings. (BDO
REMEDIAL LAW
Strategic Holdings, Inc. v. Asia Amalgamated
Holdings Corp., G.R. No. 217360, Nov. 13, 2019).
Objections to Interrogatories
Objections to the interrogatory may be presented
to the court within ten (10) calendar days after
service thereof.
Difference Between Interrogatories to Parties
and Bill of Particulars
INTERROGATOBILL OF
RIES TO PARTIES
PARTICULARS
Directed
to
Adverse Party.
an
Seeks the disclosure
of all material and
relevant facts from a
party.
Directed
Pleading.
to
a
Designed to seek for
a
more
definite
statement
or
for
particulars of any
matter not averred
with
sufficient
definiteness in a
pleading.
Difference Between Interrogatories to Parties
and Written Interrogatories in a Deposition
INTERROGATORIES
TO PARTIES
WRITTEN
INTERROGATORIES
IN A DEPOSITION
Purpose is to elicit Purpose is the same
facts from any adverse as other types of
party. The answers depositions.
may constitute judicial
admissions.
Directed
to
Adverse Party.
an Directed
to
any
person, including the
adverse party.
Written interrogatories Written interrogatories
are served to the are served to the
adverse party.
officer who shall take
the deposition.
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Interrogatories
are Officer shall take the
answered
fully
in oral responses of the
writing.
deponent
to
the
written interrogatories.
The service of written interrogatories is a mode of
deposition
separate
and
distinct
from
interrogatories to parties. (RIANO 2019, p.492).
a. Consequences Of Refusal To Answer
The following are the consequences of refusal to
answer written interrogatories:
i. If a party refuses to answer any question any
interrogatory, the examination may be
completed on other matters or adjourned as the
proponent of the question may prefer. (Rule 29,
Sec. 1).
ii. The proponent of the question may apply for an
order to the court where the deposition is being
taken to compel the adverse party to answer. If
granted, the refusing party will be required to
answer; he may also be required to pay the
proponent reasonable fees for filing the order,
including attorney’s fees. (Rule 29, Sec. 1).
iii. If after being ordered by the court, the party or
witness still refuses to answer, the refusal may
be considered a contempt of that court. (Rule
29, Sec. 2).
iv. The court may likewise make such orders, upon
motion and notice, in regard to the refusal of
the party or witness to answer the
interrogatories despite proper service thereof:
a. That the matters regarding which the
questions were asked shall be taken to be
established for the purposes of the action in
accordance with the claim of the party
obtaining the order. (Rule 29, Sec. 3(a));
b. That the disobedient party be refused to be
allowed to support or oppose the
designated claims or defenses or
prohibiting him or her from introducing in
evidence designated documents or things
or items of testimony. (Rule 29, Sec. 3(b));
c. That any part of of any pleading of the
disobedient party be stricken out. (Rule 29,
Secs. 3(c) and 5);
REMEDIAL LAW
d. That the action or proceeding or any part
thereof be stayed until the order is obeyed.
(Rule 29, Secs. 3(c) and 5);
e. That the action or proceeding or any part
thereof be dismissed. (Rule 29, Secs. 3(c)
and 5);
f. That a judgment shall be rendered by default
against the disobedient party. (Rule 29,
Secs. 3(c) and 5);
g. That, in addition to the above, the
disobedient party may be required to pay
the proponent reasonable fees for filing the
order, including attorney’s fees. (Rule 29,
Sec. 5); and
h. That the disobedient party or agent of such
party be arrested. (Rule 29, Sec. 3(d));
However, where a party refuses only to answer a
PARTICULAR question, Section 3 [c], Rule 29
shall apply (the only difference being that in
Section 3[c], there is no provision on payment of
reasonable expenses/ penalty).
b. Effect Of Failure To Serve Written
Interrogatories
General Rule: 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.
Exception: When allowed by the court for good
cause and to prevent a failure of justice. (Rule 25,
Sec. 6).
3. REQUEST FOR ADMISSION
Purpose of Admission
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 in trial.
(RIANO 2019, p.493).
A party should not be compelled to admit matters
of fact already admitted by his pleading and
concerning which there is no issue, nor should he
be required to make a second denial of those
already denied in his answer to the complaint.
[xxx] A request for admission is not intended to
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merely reproduce or reiterate the allegations of the
requesting party's pleading but should set forth
relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose
purpose is to establish said party's cause of action
or defense.
Unless it serves that purpose, it is, as correctly
observed by the Court of Appeals, "pointless,
useless," and "a mere redundancy.” (Po v. CA,
G.R. No. L-34341, 1988)
How Request for Admission Made
At any time after the issues have been joined, a
party may file and serve upon another party a:
a. Request for the admission of the genuineness
of any material and relevant document
described in and exhibited with the request; or
b. Request for the admission of the truth of any
material and relevant matter of fact set forth in
the request.
Copies of the documents shall be delivered with
the request unless the same have already been
furnished. (Rule 26, Sec. 1)
The court may allow the party making an
admission, whether express or implied, to
withdraw or amend it upon such terms as may be
just. (Rule 23, Sec. 4). To effect the withdrawal,
the admitting party should file a motion to be
relieved of the effects of his admission. (RIANO,
2019, p. 494)
Defect in the Request for Admission
The request for admission of documentary
evidence was held to be defective for the petitioner
failed to comply with the requirements under
Section 1 of Rule 26 which provides that a party
may serve upon any other party a written request
for the admission by the latter of the genuineness
of any material and relevant document described
in and exhibited with the request; and that copies
of the documents should be delivered with the
request unless copies have already been
furnished. (Duque v. Court of Appeals, G.R. No.
125383, 2002)
REMEDIAL LAW
Objections to Requests for Admission
Objections to any request for admission shall be
submitted to the court within the period for and
prior to the filing of the sworn statement, i.e.,
fifteen (15) days after service of request. Such
objections will defer compliance until such have
been resolved by the court. (Rule 26, Sec. 2(2)).
a. Implied Admission By Adverse Party
There is an implied admission if the party to whom
the request is made does not file and serve a
sworn statement either:
a. Denying specifically the matters of which an
admission is requested; or
b. Setting forth the reasons why he or she cannot
truthfully admit or deny those matters.
The sworn statement must be filed and served
within the period designated in the request for
admission but shall not be less than fifteen (15)
calendar days after service of the request. (Rule
26, Sec. 2).
To avoid the implied admission, the party
requested may have the compliance of the filing
and service of the sworn statement deferred. This
deferment may be effected by the filing with the
court objections to the request for admission.
(RIANO, 2019, p. 495, also see Rule 26, Sec. 2(2))
That the Comment was not under oath is not a
substantive, but merely a formal, defect which can
be excused in the interest of justice conformably
to the well-entrenched doctrine that all pleadings
should be liberally construed as to do substantial
justice. The filing of such Comment substantially
complied with Rule 26. Consequently, the DBP
cannot be deemed to have impliedly admitted the
matters set forth in the Request for Admission for
the mere reason that its Comment was not under
oath. (DBP v CA, G.R. No. 153034, 2005).
b. Consequences Of Failure To Answer
Request For Admission
If a sworn denial (see Rule 26, Sec. 2) is filed and
served to the party requesting for admission, and
the latter thereafter proves the genuineness of
such document or the truth of any matter of fact,
the party requesting, upon motion, apply for an
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order requiring the other party to pay him
reasonable expenses incurred in making such
proof, including attorney’s fees.
The order shall be issued unless the court finds
that there were good reasons for the denial or that
admissions sought were of no substantial
importance. (Rule 29, Sec. 4).
If the party to whom the written request for
admission is directed does not file the required
sworn statement, each of the matters of which an
admission is requested shall be deemed admitted
(Estate of Ferdinand E. Marcos v. Republic, G.R.
No. 213037)
c. Effect Of Admission
REMEDIAL LAW
b. Order any party to permit entry upon designated
land or other property in his possession or
control for purpose of inspecting, measuring,
surveying, or photographing the property or
any designated object or operation therein.
(Rule 27, Sec. 1).
Filing of a Motion; Order of the Court
1. The motion must be filed by the party seeking
the production or inspection of documents and
things, and the motion must show good cause
supporting the same.
2. 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).
Any admission made by a party pursuant to such
request is for the purpose of the pending action
only and shall not constitute an admission by him
or her for any other purpose nor may the same be
used against him or her in any other proceeding.
(Rule 26, Sec. 3)
This mode of discovery is not only for the benefit
of a party, but also for the court and for it to
discover all relevant and material facts in
connection with the case before it. (RIANO, 2019,
p. 496).
d. Effect Of Failure To File And Serve
Request For Admission
The scope of discovery under this mode is to be
liberally construed so as to provide the litigants
with information essential to the fair and amicable
settlement or expeditious trial of the case. While
the grant of a motion for the production of a
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. The test to be applied
by the trial judge in determining the relevancy of
the documents is one of reasonableness and
practicability.
(Eagleridge
Development
Corporation v Cameron Granville 3 Asset
Management Inc., G.R. No. 204700, 2013).
As a consequence of the failure to avail of this
mode of discovery, the party shall not be permitted
to present evidence on facts that are material and
relevant and which are, or ought to be, within the
personal knowledge of the other party, unless
otherwise allowed by the court for good cause
shown and to prevent a failure of justice. (RIANO,
2019, p. 494; see also Rule 26, Sec. 5).
4. PRODUCTION AND INSPECTION OF
DOCUMENTS OR THINGS
Purpose
The purpose of this mode of discovery is to allow
a party to seek an order from the court in which an
action is pending to:
a. Order any party to produce and permit the
inspection and copying or photographing of any
designated document, not privileged, which
constitute or contain evidence material to any
matter; or
In Security Bank Corporation v. Court of Appeals
(G.R. No. 135874, 2000), the Court enumerated
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;
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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.
Limitation of Order
A motion for production and inspection of
documents should not demand a roving inspection
of a promiscuous mass of documents. The
inspection should be limited to those documents
designated with sufficient particularity in the
motion, such that the adverse party can easily
identify the documents he is required to produce,
otherwise the petition cannot prosper. (Alvero v.
Dizon, G.R. No. L-342, May 4, 1946).
This is essentially a mode of discovery limited to
the parties to the action. This is to be differentiated
from a subpoena duces tecum which is a means
to compel the production of evidence, which may
be directed to a person who may or may not be a
party to the action. (RIANO, 2014, p.525)
Documents to be Produced
1. It should NOT be privileged;
2. It should constitute or contain evidence material
to any matter involved in the action; and
3. It must be within the party’s possession, custody
or control.
Privileged Documents (Rule 130, Sec. 24)
1. Communication between Husband and Wife;
2. Communication between Attorney and Client;
3. Communication between Physician and Patient;
4. Communication between Priest and Penitent;
and
5. Communication of Public Officers involving
public interest.
REMEDIAL LAW
Others privileged documents not mentioned
by Rule 130
1. Editors may not be compelled to disclose the
source of published news;
2. Voters may not be compelled to disclose for
whom they voted;
3. Trade secrets;
4. Information contained in tax census returns; and
5. Bank Deposits. (Air Philippines Corporation v.
Pennswell, Inc., G.R. No. 172835, December
13, 2007).
Order Merely Interlocutory
An order for the discovery and production by
defendants of documents for inspection, copying
and photographing by the plaintiff for use at trial of
the action was interlocutory and not appealable.
(Apex Hoisery Co. v. Leader, et al., 102 F 2d 702,
1939).
5. PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
Purpose
This mode of discovery applies to an action in
which the mental or physical condition of a party is
in controversy (Rule 28, Sec. 1). such as:
i. Annulment of a contract where the ground relied
on is insanity;
ii. Petition for guardianship of a person alleged to
be insane; and
iii. An action to cover damages for personal injury
where the issue is the extent of the injuries of
the plaintiff. (RIANO, 2019, p. 498).
Procedure
A motion must show good cause for the
examination with notice to the other parties aside
from the party to be examined
The motion shall likewise specify the time, place,
manner, conditions, and scope of the examination
and the person or persons by whom it is to be
made. The motion is to be filed with the court
where the action is pending. (Rule 28, Sec. 2).
Rights of the Examined Party and Party
Causing the Examination
The examined party has the right to request the
party causing the examination to be made to
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deliver to him a copy of a detailed written report of
the examining physician setting out his findings
and conclusions.
After such request and delivery, the party causing
the examination shall be entitled, upon request to
receive from, the party examined a like report of
any examination, previously or thereafter made, of
the same mental or physical condition.
If the party examined refuses to deliver the report,
the court may make an order requiring the delivery
on terms as are just. If it is the physician who fails
or refuses to make a report, the court may exclude
his testimony if offered in trial. (Rule 28, Sec. 3).
Waiver of Privilege
By requesting and obtaining a report of the
examination 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. (Rule 28, Sec. 4).
6. CONSEQUENCES OF REFUSAL TO
COMPLY WITH THE MODES OF
DISCOVERY
ACT OF
REFUSAL
CONSEQUENCES
To
answer a. If a party refuses to answer
any/all
any
question
any
question(s)
interrogatory,
the
examination may be
upon
oral
completed
on
other
examination/
matters or adjourned as
refuses
to
answer
the proponent of the
question in
question may prefer. (Rule
the
29, Sec. 1).
interrogatory b. If the motion is GRANTED–
(with court
the court shall require the
motion
to
refusing party to answer.
compel an
If the refusal to answer
answer)
was
without
SUBSTANTIAL
JUSTIFICATION, it may
require the refusing party
REMEDIAL LAW
or deponent or the
counsel advising the
refusal, or both of them, to
pay the proponent the
amount of the reasonable
expenses incurred in
obtaining
the
order,
including attorney's fees.
(Rule 29, Sec. 1)
c. If the motion is DENIED and the court finds that the
motion
was
filed
WITHOUT SUBSTANTIAL
JUSTIFICATION, the court
may require the proponent
or the counsel advising
the
filing
of
the
application, or both of
them, to pay to the
refusing
party
or
deponent the amount of
the reasonable expenses
incurred in opposing the
application,
including
attorney's fees (Rule 29,
Sec. 1)
If despite the court order, the
party or deponent still
refuses to answer, the refusal
may be considered contempt
of that court (Rule 29, Sec. 2)
To answer a a. Matters, regarding which the
particular
questions were asked,
shall be taken established
question,
produce
for purposes of the
documents,
action (Rule 29, Sec 3[a])
or submit to b. The court may issue an
physical or
order refusing to allow
mental
the disobedient party to
examination
support
or
oppose
designation claims or
defenses, or presenting
evidence
designated
documents or physical or
mental condition (Rule
29, Sec. 3[b])
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c. The court may issue an
order striking pleadings
or part thereof, staying
further proceedings until
the order is obeyed, or
dismiss the complaint or
part thereof, or render the
disobeying
party
in
default (Rule 29, Sec. 3[c])
d. May direct the arrest of the
disobeying party or the
agent except an order to
submit to physical or
mental examination (Rule
29, Sec. 3[d])
To be sworn
Contempt of court (Rule 29,
Sec. 2)
To
admit
genuinenes
s
of
document or
truth of fact
If the requesting party later
proves the genuineness of
the document or truth of fact,
the court may order the
refusing party to pay the
reasonable expenses in
making such proof. Including
attorney’s fees
REMEDIAL LAW
propounded
by the court
during
deposition
in the court
Expenses Against the Republic of the
Philippines
Expenses and attorney's fees are not to be
imposed upon the Republic of the Philippines
under this Rule.
In Zepeda v. Chinabank, G.R. No. 172175, 2006,
the Supreme Court ruled that the consequences
enumerated in Section 3(c) of Rule 29 would only
apply 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.
If such party refuses to answer the whole set of
written interrogatories and not just a particular
question, the opposing party should have filed a
motion based on Section 5 and not Section 3(c) of
Rule 29.
Unless the court finds that
there were good reasons for
the denial or that admissions
sought were of no substantial
importance, such order shall
be issued. (Rule 29, Sec. 4)
Attend
depositions
or to serve
any/all
answer to the
questions in
the
interrogatorie
s
The court may issue an order
striking pleadings or part
thereof, or dismiss the
complaint or part thereof, or
render the disobeying party in
default, or to pay the
reasonable
expenses
in
making such proof. Including
attorney’s fees. (Rule 29, Sec.
5)
To
answer Contempt of court (Rule 29,
any question Sec. 2)
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O. TRIAL
Trial vs. Hearing
Trial is the judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with his closing arguments. (Velarde v.
SJS, G.R. No. 159357, 2004).
Hearing is a broader term. It is not only confined to
the trial and presentation of evidence, but it also
includes pre-trial, determination of granting or
denying a motion and several stages of litigation.
(Trocio v. Labayo. 53 SCRA 97,100, 1973).
Necessity of Trial
General Rule: A trial is necessary when there are
issues to be tried as a result of the specific
denials of the material allegations in the complaint
(RIANO, 2019, p. 503).
Exceptions:
Trial is unnecessary:
a. Where the pleadings of the parties tender to no
issue at all: Judgment on the Pleadings (Rule
34)
b.
Wherefrom
the
pleadings,
affidavits,
depositions and other papers, there is actually
no genuine issue: Summary Judgment (Rule
35)
c. Where the parties have entered into a
compromise or an amicable settlement:
Judgment on Compromise (Rule 18)
d. Dismissal of complaint with prejudice
e. Summary procedure cases
f. Where the parties agree, in writing, upon the
facts involved in the litigation, and submit the
case for judgement on the facts agreed
upon: Judgment on Facts Stipulated/Agreed
Upon (Sec. 6, Rule 30, ROC)
(RIANO, 2019, p. 504)
1. ADJOURNMENTS AND
POSTPONEMENTS
A court may adjourn a trial from day to day and to
postpone it to any stated time.
REMEDIAL LAW
General Rule: A court does not have power to
adjourn trial for a longer period than one (1) month
for each adjournment and not for more than three
(3) months total for all adjournments.
Exception: When authorized in writing by the
Court Administrator, Supreme Court. (Rule 30,
Sec. 2).
2. REQUISITES OF MOTION TO POSTPONE
TRIAL
a. For Absence Of Evidence
The section covering the requisites of motion to
postpone trial for absence of evidence (former
Sec. 3 of Rule 30) has been deleted. Under the
2019 Amendments, trial may only be postponed
on the ground of illness of party or counsel (now
Sec. 3 of Rule 30).
b. For Illness Of A Party Or Counsel
Requisites:
1. Affidavit or sworn certification showing that the
presence of such party or counsel at the trial is
indispensable; and
2. The character of the illness is such as to render
the non-attendance excusable. (Sec 3, Rule.
30).
Postponement is NOT a matter of right. It is
addressed to the sound discretion of the court.
(Go-Bangayan v. Bangayan, Jr. G.R. No. 201061,
July 3, 2013)
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).
3. AGREED STATEMENT OF FACTS
Parties to ANY action may agree upon the facts
involved in the litigation.
Such agreement must be in WRITING and upon
facts involved in the litigation. The case will then
be submitted for judgment on the facts agreed
upon WITHOUT need for introduction of evidence.
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If the parties agree only on some of the facts, trial
shall be held as to the disputed facts. (Sec. 7, Rule
30)
4. ORDER OF TRIAL; REVERSAL OF
ORDER
Order of Trial
The trial shall proceed as follows:
1. Plaintiff shall adduce evidence in support of his
complaint;
2. Defendant shall then adduce evidence in
support of his defense, counterclaim, crossclaim or third-party complaint;
3. Third-party defendant shall adduce evidence
in support of his defense, counterclaim, crossclaim, fourth-party complaint;
4. Fourth-party defendant and so on shall
adduce evidence of the material facts pleaded
by him;
5. The parties against whom any counterclaim
or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in
the order prescribed by the court;
6. Parties may then adduce rebutting evidence
only, unless the court permits them to adduce
evidence upon their original case;
7. Oral argument and submission of
memoranda and any further pleadings, if
required by the court; and
8. Case deemed submitted for decision.
The trial shall be limited to the issues stated in the
pre-trial order. (Sec. 5, Rule 30).
REMEDIAL LAW
the relative order of presentation of their evidence.
(Sec. 5, Rule 30).
Schedule of Trial
The 2019 Amendments incorporated in the Rules
of Court the Revised Rules on Continuous Trial
(A.M. 15-06-10 S.C, see Sec 1, Rule 30).
The parties shall strictly observe the scheduled
hearings as agreed upon and set forth in the pretrial order.
The schedule of trial dates, for both plaintiff and
defendant, shall be continuous and within the
following periods:
STEP
WHEN DONE
TIME
ALLOWED
Initial
Presentation
of Plaintiff’s
evidence.
Not later than
30 days from
the
termination of
the pre-trial
conference.
Within
3
months/90
calendar days
which shall
include the
Judicial
Dispute
Resolution, if
necessary.
Initial
Presentation
of
Defendant’s
evidence.
Not later than
30 days after
the
court’s
ruling on the
plaintiff’s
formal offer of
evidence.
Within the 3
months/ 90
calendar
days.
The above order is only the general rule. In
furtherance of justice and to avoid any prejudice,
the court may order a separate trial of:
a. Any claim, cross-claim, counterclaim, or thirdparty complaint;
b. Any separate issue; or
c. Any
number
of
claims,
crossclaims,
counterclaims, third-party complaints or issues.
(Sec.5, Rule 30 & Sec. 2, Rule 31).
Determined
Presentation
of evidence by the court.
of
third,
(fourth etc.)
party claim,
cross-claim,
or
counterclaim
.
Shall
not
exceed
90
calendar
days.
If the several defendants or third-party defendants,
and so forth, having separate defenses appear
by different counsel, the court shall determine
Determined
Presentation
of
parties’ by the court.
rebuttal
Shall
be
completed
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evidence,
necessary.
Decision
the court.
if
by After
submission of
the case for
resolution.
REMEDIAL LAW
within a period
of 30 days.
Period
not
exceeding 90
days, with or
without
memoranda
Hearing Days and Calendar Call
Under the 2019 Amendments, trial shall be held
from Monday to Thursday, and the courts having
to call the cases at exactly 8:30 am to 2:00 pm
pursuant to ADMINISTRATIVE CIRCULAR NO. 399.
Hearing on motions shall be held on Fridays,
pursuant to Sec. 8, Rule 15.
(Sec 1, Rule 30).
The trial dates may be shortened determined on
the number of witnesses presented, provided that
the presentation of evidence of all parties shall be
terminated within a period of 10 months or 300
calendar days. (Sec 1, Rule 30).
If there are no third (fourth, etc.) party claim,
counterclaim, or cross-claim, the presentation of
evidence shall be terminated within a period of 6
months or 180 calendar days. (Sec 1, Rule 30).
Reversal or Modification of Order of Trial
If the defendant relies upon an affirmative defense
in his answer, then the order of the trial may be
properly reversed. This is because the plaintiffs
need not present evidence as judicial admissions
do not require proof. (see Sec. 5, Rule 6).
The defendant in this case will present evidence
ahead of the plaintiff. (People of the Philippines v.
SPO1 Marcial, G.R. No. 152864-65, September
27, 2006)
In the exercise of its discretion, it courts, in
receiving evidence, may use a method aside from
the traditional modes mentioned in the rules of
court. An example of this is the “hot tubbing
method” where the judge can hear all the experts
discussing the same issue at the same time to
explain each of their points in a discussion with a
professional colleague (International Service for
the Acquisition of the Agri-Biotech Applications,
Inc. v. Greenpeace Southeast Asia Philippines,
G.R. No. 209271, Dec. 8, 2015).
All courts must ensure that posting of their court
calendars outside their courtrooms at least one
day before the scheduled hearings, pursuant to
OCA Cir. No. 250-2015. (Sec 4, Rule 30).
Suspension of Actions
The suspension of actions shall be governed by
the Civil Code and other laws. (Sec. 8, Rule 30.)
5. CONSOLIDATION OR SEVERANCE
When Consolidation is Proper
A court may order consolidation when:
1. There are actions involving a common
question of law or fact; and
2. The actions are pending before the same court.
(Sec. 1, Rule 31).
How Consolidation Made
When circumstances warrant the consolidation to
be proper, the court may order:
a. A joint hearing or trial of any and all matters or
issue in the action;
b. Consolidation of all actions; or
c. Such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.
(Sec. 1, Rule 31).
Consolidation of cases may take place in any of
the following ways:
a. 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. (quasi-consolidation);
b. 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
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same parties stating claims which might have
been set out originally in one complaint. (actual
consolidation);
c. 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.
(consolidation for trial) (Producers Bank of the
Phils. V. Excelsa Industries, Inx., GR No.
173820, 2012).
Civil cases MAY now be consolidated with criminal
cases. (Rule 111, Section 2[a]).
Consolidation is a matter of discretion with the
court. Consolidation becomes a matter of right
only when the cases sought to be consolidated
involve similar questions of fact and law, provided
certain requirements are met. An essential
requisite of consolidation is that the court must
have jurisdiction over all the cases consolidated
before it. In this case, since the Sandiganbayan
does not have jurisdiction over the collection case,
the same cannot be consolidated with the criminal
cases even if these cases involve similar
questions of fact and law. (Republic v. Court of
Appeals, G.R. No. 116463, 2013).
REMEDIAL LAW
In the appellate stage, the rigid policy is to make
the consolidation of all cases and proceedings
resting on the same set of facts, or involving
identical claims or interests or parties mandatory.
Such consolidation should be made regardless of
whether or not the parties or any of them
requests it. (In re: Fabiana, A.M. No. CA-12-51-J,
2013)
Proceedings for the issuance of a writ of
possession being ex parte and non-litigious in
nature, cannot be consolidated with proceedings
seeking to nullify the extra-judicial foreclosure or
the certificate of sale. (Espinoza v. UOB, G.R. No.
175380, 2010).
When Severance is Proper
In furtherance of justice and to avoid any
prejudice, the court may order a separate trial of:
a. Any claim, cross-claim, counterclaim, or thirdparty complaint;
b. Any separate issue; or
c. Any number of claims, cross-claims,
counterclaims, third-party complaints or issues.
(Sec.5, Rule 30 & Sec. 2, Rule 31).
6. DELEGATION OF RECEPTION OF
EVIDENCE
General Rule: The JUDGE of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties.
Under the Rules of Court, the consolidation of
cases for trial is permissive and a matter of judicial
discretion. This is because trials held in the first
Exception: The court may delegate the reception
instance require the attendance of the parties,
of evidence to its clerk of court, who is a
their respective counsel and their witnesses, a
member of the Bar, in:
task that surely entails an expense that can
multiply if there are several proceedings upon the 1. a. Default or ex parte hearings; or
same issues involving the same parties. At the trial 2. b. Any case where the parties so agree in writing.
stage, the avoidance of unnecessary expenses
The clerk of court has the duty to submit his report,
and undue vexation to the parties is the primary
objections, and transcripts of the proceedings
objective of consolidation of cases.
within 10 days from the termination of hearing.
But the permissiveness of consolidation does not
carry over to the appellate stage where the primary
objective is less the avoidance of unnecessary
expenses and undue vexation than it is the ideal
realization of the dual function of all appellate
adjudications.
The CLERK OF COURT shall have NO power:
a. To rule on objections to any question; or
b. To rule on the admission of exhibits.
Such power shall remain with the judge. The judge
shall resolve such objections within ten (10)
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calendar days from the
hearing. (Sec. 9, Rule 30).
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termination
of
7. TRIAL BY COMMISSIONERS
a. Reference By Consent Or Ordered On
Motion
Reference by Consent
By written consent of both parties, the court may
order the trial of any or all of the issues in a case
to be referred to a COMMISSIONER. (Sec. 1, Rule
32)
Reference Ordered by the Court
If there is no written consent from both of the
parties, the court may direct a reference to a
Commissioner, either:
a. Upon motion of either party, or
b. Upon the court’s own motion, when none of the
parties do not consent. (Sec. 2, Rule 32)
Reference to a commissioner may be made by the
court in only the following cases:
a. When the trial of an issue of fact requires the
examination of a long account on either side,
in which case the commissioner may be
directed to hear and report upon the whole
issue or any question involved;
b. When the taking of an account is necessary
for the information of the court before
judgment;
c. When carrying a judgment or order into
effect;
d. When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in
any stage of the case. (Sec 2. Rule 32)
Who are Commissioners
As contemplated by the Rules of Court, a
commissioner includes a referee, an auditor, and
an examiner. The commissioner may either be:
a. Agreed upon by both parties; or
b. Appointed by the court. (e.g., in cases of
expropriation, partition, settlement of Estate).
(Sec. 1, Rule 32).
Before entering upon his or her duties, the
commissioner shall be sworn to a faithful and
honest performance thereof. (Sec. 4, Rule 32)
An irregularity in the appointment of a
commissioner must be seasonably raised in the
trial court where the defect could still be remedied,
either before the parties proceed with the hearing
or before the court hands down its ruling. It is a
procedural point that can be waived by consent of
the parties, express or implied.
However, if the errors in the procedure for the
appointment of the commissioner are not
prejudicial to the parties because there is no proof
that the commissioner committed any mistake or
abuse in the performance of the task entrusted to
him, the holding of a new trial by reason thereof
alone is not justified (CCC Insurance Corporation
v. Court of Appeals 31 SCRA 264, 1970)
b. Powers Of The Commissioner
Order of Reference
When a reference to a commissioner is made, the
clerk of court shall furnish the commissioner a
copy of the order of reference. Such order shall:
1. Specify or limit the powers of the commissioner;
2. May direct him or her to report only upon
particular issues;
3. May direct him or her to do or perform particular
acts only;
4. May direct him or her to receive and report
evidence only;
5. Fix the date for beginning and closing the
hearings; and
6. Fix the date for the filing of his or her report. (Sec
3, Rule 32).
Powers of the Commissioner
Subject to the limitations set forth by the order of
reference, the Commissioner has the power to:
i. Regulate the proceedings before him;
ii. Do all acts and take measures necessary for the
efficient performance of his duties;
iii. Issue subpoena and subpoena duces tecum;
iv. Swear in witnesses;
v. Rule on the admissibility of evidence, unless
otherwise provided in the order of reference;
and
vi. Do all acts and take all measures necessary or
proper, for the efficient performance of his
duties.
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The trial or hearing before him or her shall proceed
in all aspects as it would if held before the court.
(Sec 3, Rule 32).
Proceeding Before the Commissioner
Upon receipt of the order of reference, unless
provided therein, the commissioner shall forthwith
set a time and place for the first meeting of the
parties of their counsel to be held within 10
calendar days after the date of the order of
reference and shall notify the parties or their
counsel. (Sec. 5, Rule 32).
It is the duty of the commissioner to proceed with
all reasonable diligence. Either party, on notice
to the party and commissioner, may apply to the
court for an order requiring the commissioner to
expedite the proceedings and to make his or
her report. (Sec. 8, Rule 32).
Failure of Party to Appear Before the
Commissioner
If a party fails to appear at the time and place
appointed, the commissioner may:
a. Proceed with the proceedings ex parte; or
b. In his or her discretion, adjourn the proceeding
to a future day, giving notice to the absent party
or his or her counsel of the adjournment. (Sec
6, Rule 32).
The refusal of a witness to obey to a subpoena
issued by the commissioner or to give evidence
before him or her, shall be deemed a contempt of
court which appointed the commissioner. (Sec. 7,
Rule 32).
c. Commissioner’s Report; Notice To
Parties And Hearing On The Report
Commissioner’s Report
Upon completion of trial or hearing or proceeding
before the Commissioner, the Commissioner shall
file a report in writing:
1. Showing the matters submitted to him in the
order of reference; or
2. His or her findings of fact or conclusions of law,
when his or her power is not so limited.
He shall also attach all exhibits affidavits,
depositions, papers and the transcript of
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testimonial evidence presented before him. (Sec.
9, Rule 32).
Notice to Parties
Upon filing of the Commissioner’s Report, the
Clerk of Court shall notify the parties.
Parties are allowed ten (10) calendar days from
such notice to signify grounds for objections to the
findings.
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 herein
set forth, shall not be considered by the court
UNLESS they were made before the
commissioner. (Sec. 11, Rule 32)
Hearing on the Report
After the expiration of the ten (10) calendar day
period after notice to file an objection, a hearing
shall be set on the report.
After hearing the court shall issue an order
adopting,
modifying
or
rejecting
the
Commissioner’s Report.
When the parties stipulate that a commissioner's
findings of fact shall be final, only questions of law
shall thereafter be considered. (Sec. 12, Rule 32).
P. DEMURRER TO EVIDENCE
Nature of Demurrer
A demurrer to evidence 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 a case or sustain the issue. (Felipe v
MGM Motor Trading, GR No 191849, Sep. 23,
2015).
A demurrer to evidence is actually a motion to
dismiss on the ground of insufficiency of evidence.
The question in a demurrer to evidence is whether
the plaintiff, by his evidence in chief, had been able
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to establish a prima facie case. (Republic v. De
Borja, G.R. No. 187448, Jan. 9, 2017).
The review of a dismissal of the complaint on
based on a demurrer to evidence naturally entails
a calibration of the evidence to determine whether
the material allegations of the complaint were
sufficiently backed by evidence. Hence, the same
involves a question of fact. Rule 45 is a wrong
mode of appeal for a demurrer. (Felipe v. MGM
Motor Trading Corp., G.R. No. 191849 Sep. 23,
2015).
1. GROUNDS
Insufficiency of Evidence as Ground for a
Demurrer
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 (Sec. 1, Rule 33).
The evidence contemplated by the rule on
demurrer is that which pertains to the merits of
the case, excluding technical aspects such as
capacity to sue. (Celino v. Heirs of Alejo and
Teresa Santiago, G.R. No. 161817, Jul. 30, 2004).
In a demurrer to evidence, however, it is
premature to speak of "preponderance of
evidence" because it is filed prior to the
defendant's presentation of evidence; it is
precisely the office of a demurrer to evidence to
expeditiously terminate the case without the need
of the defendant's evidence. (Republic v. De Borja,
G.R. No. 187448, Jan. 9, 2017).
What should be resolved in a motion to dismiss
based on a demurrer to evidence is whether the
plaintiff is entitled to the relief based on the facts
and the law. The “facts” referred to include judicial
admissions, matters of judicial notice, stipulations
made during the pre-trial and trial, admissions, and
presumptions, the only exclusion being the
defendant’s evidence. (GMA Network v. Central
CATV, G.R. No. 176694, 2014)
REMEDIAL LAW
2. EFFECT OF DENIAL
Effect of Denial of Demurrer to Evidence
If the defendant’s motion is denied, the defendant
shall have the right to present evidence. (Sec. 1,
Rule 33).
The trial court erred in deciding the entire case on
its merits. It had no choice other than to grant or to
deny the demurrer. It could not deny the motion
and then forthwith grant the plaintiff’s claims on a
finding that the latter has established a
preponderance of evidence in support of such
claims. (Northwest Airlines, Inc. v. Court of
Appeals, G.R. Nos. 120334, Jan. 20, 1998).
But in an election case, a party whose demurrer
was denied does not have the right to present
evidence. The nature of an election protest case
differs from an ordinary civil action. Because of this
difference, the Rules of Civil Procedure on
demurrer to evidence cannot apply to election
cases even "by analogy or in a suppletory
character." (Gementiza v. Commission on
Elections, G.R. No. 140884, Mar. 6, 2001).
An order denying a demurrer to the evidence is
INTERLOCUTORY and is therefore NOT
appealable. (Katigbak v. Sandiganbayan, G.R.
No. 140183, Jul. 10, 2003).
Furthermore, under the 2019 Amendments, the
order denying the demurrer to evidence shall not
be:
1. Subject of an appeal; or
2. Petition for certiorari, prohibition, or mandamus
before judgment. (Sec. 2, Rule 33).
Note: In case of the denial of the demurrer and the
case was decided against the defendant, the
remedy is to appeal from the judgment raising as
error the denial of the demurrer. (Id.).
3. EFFECT OF GRANT
Effects of Granting the Demurrer to Evidence
The court, upon granting the demurrer, shall
dismiss the case. (Sec. 1, Rule 33).
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It is axiomatic that a dismissal on the basis of a
demurrer to evidence is similar to a judgment; it is
a final order ruling on the merits of a case.
(Republic v. De Borja, G.R. No. 187448, Jan. 9,
2017).
Effect of Denial vs. Granting Demurrer
MOTION DENIED
MOTION GRANTED
Movant shall have the The case shall be
right to present his dismissed.
evidence.
INTERLOCUTORY;
however, the denial of
the demurrer is not
subject to appeal,
certiorari, prohibition,
or mandamus. The
remedy is to appeal
from
the adverse
judgment on the part
of the defendant.
ADJUDICATION ON
THE MERITS. It is
appealable on the
part of the plaintiff.
If on appeal of the
judgment, denial of
demurrer is reversed,
the case shall be
dismissed.
If on appeal, demurrer
is
reversed,
defendant deemed to
have waived his right
to present evidence;
appellate court shall
render
judgment
based
on
the
evidence
of
the
plaintiff.
4. WAIVER OF RIGHT TO PRESENT
EVIDENCE
5. DISTINGUISH: DEMURRER TO
EVIDENCE IN A CIVIL CASE AND
DEMURRER TO EVIDENCE IN A CRIMINAL
CASE
CIVIL CASE
NO need for leave of
court for defendant to
file
demurrer
to
evidence.
If court finds plaintiff’s
evidence insufficient,
demurrer
will
be
granted
and
complaint will be
dismissed.
This
dismissal
is
appealable.
If plaintiff appeals and
the
judgment
is
reversed,
the
appellate court will
decide the case on
the basis of plaintiff’s
evidence and the
defendant loses his
right
to
present
evidence.
If
court
denies
demurrer, defendant
will
present
his
evidence
CRIMINAL CASE
Leave of court is
NECESSARY so that
the accused could
present his evidence
if his demurrer is
denied.
If
court
finds
prosecution’s
evidence insufficient,
demurrer
will
be
granted and judgment
will
be
rendered
acquitting
the
accused.
The
judgment
is
not
appealable based on
double jeopardy.
Judgment is NOT
appealable by reason
of the double jeopardy
rule.
If
court
denies
demurrer, either of the
following will happen:
Effect of Reversal of Demurrer on Appeal
If on appeal, the order granting the motion for
demurrer is reversed, the defendant loses his right
to present evidence. (Sec. 1, Rule 33).
1. If demurrer was
WITH express leave
of court, accused may
present evidence;
If, upon appeal, the demurrer is reversed, the
appellate court should not remand the case back
to the trial court. Instead, it should render judgment
on the basis of the evidence submitted by the
plaintiff. (Radiowealth Finance Corp. v. Del
Rosario, G.R. No. 138739, Jul. 6, 2000).
2. If demurrer was
WITHOUT leave of
court, accused can no
longer
present
evidence and the
case is submitted for
decision based on
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CIVIL CASE
The court cannot, on
its own make a
demurrer.
CRIMINAL CASE
prosecution’s
evidence.
The court, after the
prosecution
has
rested its case, shall
inquire
from
the
accused if he desires
to move for leave of
court
to
file
a
demurrer or proceed
with the presentation
of
his
evidence.
(Revised Guidelines
for Continuous Trial in
Criminal Cases).
(RIANO, 2019, p.516).
REMEDIAL LAW
5. Filed with the clerk of court. (Sec. 1, Rule 36).
Furthermore, due process dictates that before any
decision can be validly rendered in a case, the
following safeguards must be met:
1. The court or tribunal must be clothed with
judicial authority to hear and determine the
matter before it;
2. It must have jurisdiction over the person of the
party or over the property subject of the
controversy;
3. The parties thereto must have been given an
opportunity to adduce evidence in their behalf,
and
4. Such evidence must be considered by the
tribunal in deciding the case. (Acosta v.
COMELEC, G.R. No. 131488, August 3, 1988).
1. JUDGMENT AFTER PRE-TRIAL
Similarities of Both Demurrer in a Civil case
and a Criminal Case
Both are based on insufficiency of evidence
presented by the plaintiff or the prosecution to
warrant the grant of affirmative relief in favor of the
plaintiff nor conviction of accused. (Sec. 1, Rule
33; Sec. 23, Rule 119).
In both, the motion is filed after the plaintiff or the
prosecution has presented evidence and closed
his or its case. (Id.).
Q. JUDGMENTS AND FINAL ORDERS
Meaning of Judgment
A judicial act which settles the issues, fixes the
rights and liabilities of the parties, and determines
the proceeding, and is regarded as the sentence
of the law pronounced by the court on the action
or question before it. (Legarda v. Court of Appeals,
G.R. No. 94457, Oct. 16, 1997).
Requisites of a Valid Judgment
The requisites of a valid judgment are:
1. In writing;
2. Personally and directly prepared by the judge;
3. State clearly and distinctly the facts and the law
on which it is based;
4. Signed by the judge;
Proprietary of Rendering Judgment at Pre-Trial
During the pre-trial, among the matters that the
court should consider is the proprietary of
rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a
valid ground therefore be found to exist. (Sec. 2(f),
Rule 18).
The court shall 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,
should there/it be:
a. No more controverted facts;
b. No more genuine issue as to any material fact;
c. Absence of an issue; or
d. That the answer fails to tender an issue.
This is without prejudice to a party moving for
judgment on the pleadings or summary judgment
under Rules 34 and 35, respectively.
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).
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In one case, petitioner moved for a summary
judgment after pre-trial. Respondent countered,
arguing that by agreeing to proceed to trial during
the pre-trial conference, petitioner waived its right
to summary judgment. The Court ruled in favor of
the petitioner, holding that if plaintiff was allowed
to move for summary judgment even after trial and
submission of the case for resolution, more so
should we permit it in the present case where
petitioner moved for summary judgment before
trial. Whenever it becomes evident at any stage of
the litigation that no triable issue exists, or that the
defenses raised by the defendants are sham or
frivolous, plaintiff may move for summary
judgment. (Republic v. Sandiganbayan, G.R. No.
152154, Jul. 15, 2003).
2. JUDGMENT WITHOUT TRIAL
A decision rendered without a full-blown trial.
Examples include judgment by confession and
judgment upon a compromise.
Judgment by Confession
This is a judgment rendered by the court after a
party expressly agrees to the other party’s claim or
acknowledges the validity of the claim against him.
(RIANO, 2019, p. 543).
Judgment Upon a Compromise
A compromise judgment is a decision rendered by
a court sanctioning the agreement between the
parties concerning the determination of the
controversy at hand.
REMEDIAL LAW
Judgment upon a compromise is immediately
executory upon the signing of the compromise
agreement in the absence of a motion to set aside
on the ground of fraud, mistake, etc. Hence, it has
the effect of res judicata. (World Machine
Enterprises v. IAC, G.R. No. 72019, 1990).
It is well-settled that a judicial compromise has the
effect of res judicata and is immediately
executory and not appealable unless a motion to
set aside the same is led on the ground of fraud,
mistake or duress, in which event an appeal may
be led from an order denying the same. A court
cannot set aside a judgment based on
compromise without having declared in an
incidental hearing that such a compromise is
vitiated by any of the grounds for nullity
enumerated (Salvador v. Ortoll, G.R. No. 140942,
Oct. 18, 2000).
3. JUDGMENT ON THE PLEADINGS
When Judgment on the Pleadings Made
The court upon motion of the claimant on the
ground that an answer:
a. Fails to tender an issue; or
b. Otherwise admits the material allegations of
the adverse party’s pleading. (Sec. 1, Rule 34)
It is a form of judgment that is exclusively based
on the submitted pleadings without the
introduction of evidence as the factual issues
remain uncontroverted. (GSIS v. Prudential, G.R.
No. 165585, 2013)
Essentially, it is a contract, stamped with judicial
imprimatur, between two or more persons, who,
for preventing or putting an end to a lawsuit, adjust
their difficulties by mutual consent in the manner
which they agree on, and which each of them
prefers in the hope of gaining, balanced by the
danger of losing.
A judgment on the pleadings will not apply when
no answer is filed. It will come into operation only
when an answer is served and filed but the same
fails to tender an issue or admits the material
allegations of the adverse party’s pleading.
(RIANO, 2019, p. 544)
However, upon court approval of a compromise
agreement, it transcends its identity as a mere
contract binding only upon the parties thereto, as
it becomes a judgment that is subject to execution.
(Diamond Builders Conglomeration v. Country
Bankers Insurance Corp., G.R. No. 171820, Dec.
13, 2007).
When Answer Fails to Tender An Issue
An answer fails to tender an issue if it does not
comply with the requirements of a specific denial
as set out in Sections 8 (actionable document
denial under oath) and 10 (specific denial) [of Rule
8]. Failure to deny such would result in the
admission of the material allegations of the
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adverse party’s pleadings. (Asian Construction v.
Sanneadle, G.R. No. 181676, June 11, 2014)
the motion shall be subject to the provisions of
Rule 15 (Motions). (Sec. 2, Rule 34).
The defense of the defendant was that plaintiff was
in bad faith. The court ruled that the answer in fact
tendered an issue hence judgment on the
pleadings would be inapplicable. The plaintiff, in
this case, prayed for an accounting which required
a full blown trial (requires presentation of evidence
on partial payment) hence, there was a genuine
issue in the case at bar. (Sps. Ong v. Roban
Lending, G.R. No. 172592, 2008)
A motion for judgment on the pleadings is a
litigious motion. (Sec. 5, Rule 15)
When Answer Otherwise Admits Material
Allegations of a Pleading
The answer admits the material allegations of the
adverse party’s pleading by:
a. Expressly admitting the truth of such
allegations;
b. Failing to make a specific denial of the material
allegations; or
c. Omitting to deal with the material allegations at
all. (Medical Enterprises, Inc. v. Wesleyan
University Philippines, G.R. No. 207970,
January 20, 2016; RIANO, 2019, p. 544)
Normally, it is the plaintiff who files a judgment on
pleadings. But in one case, the defendant was the
one who moved for judgment on pleadings without
offering proof as to the truth of her allegations and
without giving the plaintiff opportunity to introduce
evidence. The Court ruled that the defendant is
deemed to have admitted the material and
relevant matters of the complaint. (Sunbanun v.
Go, G.R. No. 163280, 2010).
Sham denials, consisting of an avowed lack of
knowledge of facts which could not but be clearly
known by them, in effect tender no issue, or
otherwise admit the allegations of the complaint
material to a valid decision. (Manufacturer’s Bank
v. Diversified, G.R. No. 33695, 1989)
Action on Motion for Judgment on the
Pleadings
The court may motu propio or on motion render
judgment on the pleadings if it is apparent from the
answer that there are grounds for such. Otherwise,
Also, if at pre-trial, the court finds that a judgment
on the pleadings is proper, it may render such
judgment motu proprio. (Sec. 2(f), Rule 18; see
discussion on judgment at pre-trial)
Any action of the court on a motion for judgment
on the pleadings shall not be subject of an appeal
or petition for certiorari, prohibition, or mandamus.
(Sec. 2, Rule 34)
A Motion for Judgment on the Pleadings is one
that is considered ex parte because upon
particular facts thus presented, the plaintiff is
entitled to judgment. (Dino v. Valencia, G.R. No. L43886, 1989)
Cases Where Judgment on the Pleadings Do
Not Apply
In the following cases, a judgment on the
pleadings will not apply:
a. Declaration of nullity of marriage;
b. Annulment of marriage; and
c. Legal separation;
Note: for items 1 to 3, the material facts alleged in
the complaint shall always be proven. The purpose
is to prevent collusion between the parties. (Sec.
1, Rule 34, see Articles 48 and 60 of the Family
Code)
d. Cases involving unliquidated damages;
e. Cases where a pleading contains a conclusion
of law since it is the court which makes such
conclusions; and
f. Cases where the pleading contains nonmaterial averments or allegations.
For numbers 4 to 6, there can be no deemed
admission for failure to make a specific denial in
the answer. (RIANO, 2019, p. 331, see Sec. 11,
Rule 8)
By moving for judgment on the pleading, plaintiff
waives his claim for unliquidated damages. Claim
for such damages must be alleged and proved.
(see Sec. 11, Rule 8)
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In actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts
alleged in the complaint shall always be proven.
4. SUMMARY JUDGMENT
Nature of Summary Judgment
A summary judgment, also called accelerated
judgment, is proper where, upon a motion filed
after the issues had been joined and on the basis
of the pleadings and papers filed, the court finds
that there is no genuine issue as to any material
fact except as to the amount of damages. (Ley
Construction and Development Corp. v. Union
Bank of the Philippines, G.R. No. 133801, Jun. 27,
2000).
What triggers a summary judgment is the absence
of a genuine factual issue. It is not proper where
there are factual issues to be resolved by the
presentation of evidence. Even if there is a
complicated question of law, if there is no issue as
to the facts, a summary judgment is not barred.
(Velasco v. CA, G.R. No. 121517, 2000).
The very objective of the Rule on Summary
Judgment which is to weed out sham claims or
defenses thereby avoiding the expense and loss
of time involved in a trial. (Republic v.
Sandiganbayan, G.R. No. 152154, July 15, 2003).
Subject Matter of Summary Judgment
A summary judgment may cover matters involving:
a. Recovery based on a claim, counterclaim, or
cross-claim; or
b. Obtaining a declaratory relief. (Sec. 1 & 2, Rule
35)
An action for annulment of marriage cannot be
decided by summary judgment proceeding
(Roque v. Encarnacion, G.R. No. L-6505, 1954).
Requisites for Summary Judgment
For a summary judgment to be proper, the movant
must establish two requisites:
1. There must be no genuine issue as to any
material fact, except for the amount of
damages; and
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2. The party presenting the motion for summary
judgment must be entitled to a judgment as a
matter of law. (Rivera v. Solidbank Corporation,
G.R. No. 163269, April 19, 2006)
Meaning of Genuine Issue
A genuine issue is an issue of fact which requires
the presentation of evidence as distinguished from
a sham, fictitious, contrived or false claim. The trial
court can determine a genuine issue on the basis
of the pleadings, admissions, documents,
affidavits, or counter affidavits submitted by the
parties. (Smart Communications, Inc. v. Aldecoa,
G.R. No. 166330, September 11, 2013)
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 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. (Olivares Realty v. Castillo GR 196251,
2014)
Burden of Proving Genuine Issue of Fact
The party who moves for summary judgment has
the burden of demonstrating clearly the absence
of any genuine issue of fact, or that the issue
posed in the complaint is patently unsubstantial so
as not to constitute a genuine issue for trial.
(Philippine Bank of Communications v. Go, G.R.
No. 175514, 2011)
Motion and Proceedings for Summary
Judgment
To invoke the rule on summary judgments, a
motion must be filed. Such motion must cite the
supporting affidavits, depositions, admissions, and
specific law relied upon.
Within a non-extendible period of 5 calendar days
from receipt of the motion, the adverse party may
file a comment and serve opposing affidavits,
depositions, or admissions.
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Unless the court otherwise orders the conduct of a
hearing, the court shall render the summary
judgment sought should:
1. The
supporting
affidavits,
depositions,
admissions show that there is no genuine
issue as to any material fact, except as to
the amount of damages; and
2. The moving party, as a matter of law, is
entitled to judgment.
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.
(Sec. 3, Rule 35)
A motion for summary judgment is a litigious
motion. (Sec. 5, Rule 15)
The trial court cannot motu proprio decide that
summary judgment on an action is in order. The
defending party or claimant, as the case may be,
must invoke the rule on summary judgment by
filling a motion. The adverse party must be notified
of the motion for summary judgment and furnished
with supporting, affidavits, depositions or
admissions before hearing is conducted. (Pineda
v. Heirs of Eliseo Guevara, G.R. No. 143188,
February 14, 2007)
Under Section 3, Rule 35 of the Rules of Court, a
summary judgment may not be rendered on the
amount of damages, although such judgment may
be rendered on the issue relating to the existence
of the right to damages. (Ybiernas v. TancoGabaldon, G.R. No. 178925, 2011)
a. For The 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 summary judgment in his favor
upon all or any part thereof. (Sec. 1, Rule 35).
The phrase "anytime after the pleading in answer
thereto has been served" in Section 1, Rule 35
means "at any stage of the litigation." Whenever it
becomes evident at any stage of the litigation that
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no triable issue exists, or that the defenses raised
by the defendants are sham or frivolous, plaintiff
may move for summary judgment. (Republic v.
Sandiganbayan, G.R. No. 152154, Jul. 15, 2003).
b. For The Defendant
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 summary
judgment in his favor upon all or any part thereof.
(Sec. 2, Rule 35).
c. When The Case Not Fully Adjudicated On
Motion
Partial Summary Judgment
If based on the motion, a trial is necessary
because judgment was not rendered on the
whole case or for all reliefs sought, the court
may:
1. 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
2. Direct further proceedings in the action as are
just.
In ascertaining the material facts, the court can:
1. Examine the pleadings and evidence before it;
and
2. Interrogate the parties' counsel.
The facts so ascertained shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly. (Sec. 4, Rule 35)
The test is whether or not the pleadings, affidavits
and exhibits in support of the motion are sufficient
to overcome the opposing papers and to justify the
finding that, as a matter of law, there is no defense
to the action or claim clearly meritorious. (Estrada
v. Consolacion, G.R. No. L-40948, 1976)
A partial summary judgment is an interlocutory
order, because it does not completely and finally
dispose of a litigation. (GSIS v. PH Village Hotel,
G.R. No. 150922, 2004).
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d. Affidavits And Attachments
Form and Other Requisites of Affidavits
The requisites of the supporting and opposing
affidavits are:
1. It should be based on personal knowledge;
2. It shall set forth facts as would be admissible in
evidence;
3. It must show affirmatively that the affiant is
competent to testify to the matters stated
therein; and
4. Certified true copies of all papers or parts
referred in the affidavit be attached there to and
served therewith.
Bases of Summary Judgment
a. Affidavits supporting the motion (Rule 35, Sec.
5);
b. Depositions of the adverse party or a third party
(Rule 23);
c. Admissions of the adverse party (Rule 26); or
d. Answers to interrogatories under (Rule 25).
All the above must show that:
1. There is no genuine issue as to any material
fact, EXCEPT damages which must always be
proved; and
2. The movant is entitled to a judgment as a
matter of law. (see Sec. 3, Rule 35).
Even if the answer does tender an issue, and
therefore a judgment on the pleadings is not
proper, a summary judgment may still be rendered
if the issues tendered are not genuine, are sham,
fictitious, contrived, set up in bad faith, and
patently unsubstantial. (Vergara v. Suelto, G.R.
No. L-74766, 1987).
Affidavits in Bad Faith
Should it appear that the affidavits are:
a. Presented in bad faith; or
b. Solely for the purpose of delay,
The court shall order the offending party or
counsel to:
a. Pay to the other party the amount of reasonable
expenses, which the filing of the affidavits
caused him to incur, including attorney’s fees;
or
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b. The court may, after hearing, further adjudge
the offending party or counsel guilty of
contempt. (Sec. 6, Rule 35)
5. DISTINGUISH: JUDGMENT ON THE
PLEADINGS AND SUMMARY JUDGMENTS
JUDGMENT ON
THE PLEADINGS
There is an absence
of a factual issue in
the case because the
answer tenders no
issue at all or there is
an
admission
of
material allegations.
Solely based on the
pleadings.
Available only to a
claiming party like a
plaintiff
or
a
counterclaimant.
On the merits
Can only be initiated
when an answer has
already been filed.
SUMMARY
JUDGMENT
There is an issue, but
the same is not a
genuine
issue.
Controversy is only as
to the amount of
damages but not as to
any material fact.
Based
on
the
pleadings,
depositions,
admissions,
and
affidavits.
Available to both
plaintiff
and
defendant.
May be interlocutory,
if partial, or on the
merits.
If
filed
by
the
PLAINTIFF, it must
be filed at any time
after an answer is
served;
If
filed
by
DEFENDANT, it may
be filed at any time
even before there is
an answer.
6. CONTENTS OF A JUDGMENT
Parts of a Judgment
The Constitution and the Rules of Court apparently
delineate two main essential parts of a judgment,
namely:
1. The body (ratio decidendi); and
2. The decretal or dispositive portion (fallo).
(University of the Philippines v. Dizon, G.R. No.
171182, Aug. 23, 2012)
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The general rule is that where there is a conflict
between the fallo, or the dispositive part, and the
body of the decision or order, the fallo prevails on
the theory that the fallo is the final order and
becomes the subject of execution, while the body
of the decision merely contains the reasons or
conclusions of the court ordering nothing.
However, where one can clearly and
unquestionably conclude from the body of the
decision that there was a mistake in the dispositive
portion, the body of the decision will prevail.
(Cobarrubias v. People, G.R. No. 160610, Aug.14,
2009).
In detail, the essential parts of a good decision
consist of the following:
1. Statement of the case;
2. Statement of facts;
3. Issues or assignment of errors;
4. Court ruling, in which each issue is, as a rule,
separately considered and resolved; and
5. Dispositive portion.
The foregoing parts need not always be discussed
in sequence. But they should all be present and
plainly identifiable in the decision. (Velarde v.
Social Justice Society, G.R. No. 159357, Apr. 28,
2004).
According to Article VIII, Section 14 of the
Constitution and Rule 36, Section 1 of the Rules of
Court, a court must state the factual and legal
basis for its decisions. Faithful adherence to this is
a paramount component of due process and fair
play. The losing party is entitled to know why he
lost, so he may appeal to the higher court, if
permitted, should he believe that the decision
should be reversed.
A decision that does not clearly and distinctly state
the facts and the law on which it is based leaves
the parties in the dark as to how it was reached
and is precisely prejudicial to the losing party, who
is unable to pinpoint the possible errors of the
court for review by a higher tribunal. (Philippine
National Bank v. Heirs of Entapa, G.R. No.
215072, 2016)
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Test of Completeness of Dispositive Portion
In a civil case as well as in a special civil action,
the disposition should state whether the complaint
or petition is granted or denied, the specific relief
granted, and the costs. The following test of
completeness may be applied:
1. The parties should know their rights and
obligations;
2. They should know how to execute the decision
under alternative contingencies;
3. There should be no need for further
proceedings to dispose of the issues;
4. The case should be terminated by according
the proper relief.
The "proper relief" usually depends upon what the
parties seek in their pleadings. It may declare their
rights and duties, command the performance of
positive prestations, or order them to abstain from
specific acts. The disposition must also adjudicate
costs. (Velarde v. Social Justice Society, G.R. No.
159357, Apr. 28, 2004).
7. RENDITION OF JUDGMENTS AND FINAL
ORDERS
Rendition of a Judgment
Rendition of a judgment is the filing of the same
with the clerk of court. (Ago v. Court of Appeals,
G.R. No. L-17898, October 31, 1962) It is not the
writing or signing of the judgment which
constitutes rendition of the judgment. (Castro v.
Malazo, A.M. No. 1237-CAR, 1980).
This includes an amended decision because an
amended decision is a distinct and separate
judgment and must follow the established
procedural rule. (Balquidra v. Court of First
Instance of Capiz, G.R. No. L-40490, October 28,
1977) .
Even if the order or judgment has already been put
into writing and signed, while it has not yet been
delivered to the clerk for filing, it is still subject to
amendment or change by the judge.|(Ago v. Court
of Appeals, G.R. No. L-17898, 1962).
Period to Render a Decision
The court shall decide and serve copies of its
decision to the parties within a period not
exceeding 90 calendar days from the submission
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of the case for resolution, with or without
memoranda. (Sec. 1(c), Rule 30).
A case is deemed submitted for resolution upon
admission of all evidence and, if the court so
requires, the filing of the parties' memoranda or
conclusion of the oral arguments. (see Sec. 5(g),
Rule 30).
Judgment on the Merits
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” refer to the real or substantial grounds of
action or defense as a matter of substance in law
as distinguished from technical or collateral
grounds as a matter of form. Nonetheless, there
could be a judgment on the merits even if there is
no trial. (RIANO, 2019, p. 538).
A judgment dismissing an action for want of
jurisdiction (over the subject matter) cannot
operate as res judicata on the merits.
Judgment Sin Perjuicio
A judgment sin perjuicio is traditionally understood
to be a brief judgment containing only the
dispositive portion, without prejudice to the making
of a more extensive discussion of the findings of
fact and law to support it. It is not a final decision
and should be avoided and not be looked with
favor. (Director of Lands v. Sanz, G.R. No. 21183,
Aug. 31, 1923)
Its current use may also refer to a dismissal of an
action without prejudice, such as in Sec. 1 of
Rule 17 and Sec. 5 of Rule 7. (RIANO, 2019, p.
541).
Promulgation
The process by which a decision is published,
officially announced, made known to the public or
delivered to the clerk of court for filing, coupled
with notice to the parties or their counsel. (Lindo v.
COMELEC, G.R. No. 95016, Feb. 11, 1991).
Memorandum Decision
A memorandum decision is one rendered by an
appellate court and incorporates, by reference, the
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findings of fact and conclusions of law contained
in the decision or order under review. (RIANO,
2019, p. 522).
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. (BrionesVasquez v. Court of Appeals, G.R. No. 144882,
Feb. 4, 2005)
As long as the memorandum decision (1) states
the nature of the case; (2) summarizes the facts
with references to the record; (3) contains a
statement of the applicable laws and
jurisprudence; and (4) contains the tribunal’s
assessment and conclusions on the case, the
constitutional requirement of a valid judgment will
not be transgressed. (Oil and Natural Gas
Commission v. Court of Appeals, G.R. No.
114323, Jul. 23, 1998).
Although a memorandum decision is permitted
under certain conditions, the appellate court
cannot merely refer to the findings of fact and the
conclusions of law of the lower court. The court
must make full findings of fact and conclusion of
law of its own. (Ong Chiu Kwan v. Court of
Appeals, G.R. No. 113006, Nov. 23, 2000).
8. ENTRY OF JUDGMENT AND FINAL
ORDER
Entry of Judgment
If no appeal or motion for new trial or
reconsideration is filed within the reglementary
period, the judgment or final order shall be entered
by the Clerk in the Book of Entries of Judgment.
The date of the finality of the judgment or final
order shall be deemed to be the DATE OF ITS
ENTRY. (Sec. 2, Rule 36)
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Entry of judgment or final order is important for the
reckoning of reglementary periods such as the 5year period for execution by motion or the 6-month
period for a petition for relief (Regalado, Remedial
Law Compendium, 9th Ed.)
Finality of Judgment
The term “final” when used to describe a judgment
may be used in two senses: First, judgment is
deemed final when it disposes of a case in a
manner that leaves nothing more to be done by the
court in respect thereto. Second, the judgment is
also deemed FINAL when it is no longer
appealable and is already capable of being
executed because the period of appeal has
already lapsed. (RIANO, 2019, p. 530)
Doctrine of Immutability of Judgments
General Rule: A decision that has acquired finality
becomes immutable and unalterable, and may no
longer be modified in any respect, even if the
modification is meant to correct erroneous
conclusions of fact and law, and whether it be
made by the court that rendered it or by the
Highest Court of the land. Any act which violates
this principle must immediately be struck down.
(Sps. Valarao v. MSC and Co., G.R. No. 185331,
Jun. 8, 2016).
Exceptions: The exceptions to the immutability of
final judgments are:
a. Correction of clerical errors;
b. Nunc pro tunc entries which cause no prejudice
to any party;
c. Void judgments; and
d. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable. (Ocampo v. RPN9/Radio Philippines Network, Inc., G.R. No.
192947, 2015)
The immutability of final judgments is not a hard
and fast rule as the Court has the power and
prerogative to relax the same in order to serve the
demands of substantial justice considering: (a)
matters of life, liberty, honor, or property; (b) the
existence of special or compelling circumstances;
(c) the merits of the case; (d) a cause not entirely
attributable to the fault or negligence of the party
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favored by the suspension of the rules; (e) the lack
of any showing that the review sought is merely
frivolous and dilatory; and (f) that the other party
will not be unjustly prejudiced thereby. (People v.
Santiago y Magtuloy, G.R. No. 228819, Jul. 24,
2019).
When a supervening event renders the execution
of a judgment impossible or unjust, the interested
party can petition the court to modify the judgment
to harmonize it with justice and the facts. A
supervening event is a fact which transpires or a
new circumstance which develops after a
judgment has become final and executory. This
includes matters which the parties were unaware
of prior to or during trial because they were not yet
in existence at that time. (Dy v. Bibat-Palamos,
G.R. No. 196200, Sep. 11, 2013).
Judgment Nunc Pro Tunc
The office of a judgment nunc pro tunc is to record
some act of the court done at a former time which
was not then carried into the record, and the power
of a court to make such entries is restricted to
placing upon the record evidence of judicial action
which has been actually taken. (Briones-Vasquez
v. Court of Appeals, G.R. No. 144882, Feb. 4,
2005).
It may be used to make the record speak the truth,
but not to make it speak what it did not speak but
ought to have spoken. (Id.)
If the court has not rendered a judgment that it
might or should have rendered, or if it has
rendered an imperfect or improper judgment, it has
no power to remedy these errors or omissions by
ordering the entry nunc pro tunc of a proper
judgment. (Id.)
In all cases the exercise of the power to enter
judgments nunc pro tunc presupposes the actual
rendition of a judgment, and a mere right to a
judgment will not furnish the basis for such an
entry. (Id.)
Void Judgments
A void judgment is in legal effect no judgment, by
which no rights are divested, from which no rights
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can be obtained, which neither binds nor bars any
one, and under which all acts performed and all
claims flowing out of are void, and considering
further, that the decision, for want of jurisdiction of
the court, is not a decision in contemplation of law,
and, hence, can never become executory, it
follows that such a void judgment cannot
constitute a bar to another case by reason of res
judicata. (Tambunting, Jr. v. Spouses Sumabat,
G.R. No. 144101, Sep. 16, 2005)
The failure of petitioners to allege the key
jurisdictional facts constitutive of unlawful detainer
is fatal. Since the complaint did not satisfy the
jurisdictional requirement of a valid cause for
unlawful detainer, the MCTC corollarily failed to
acquire jurisdiction over the case, and thus its
judgment is a void judgment for lack of jurisdiction.
It cannot be the source of any right neither can it
be the creator of any obligation. (Diaz vs. Spouses
Punzalan, G.R. No. 203075, Mar. 16, 2016)
Res Judicata Effect of Final Judgments
Res judicata is defined as a matter adjudged; a
thing judicially acted upon or decided; a thing or
matter settled by judgment. (Oropeza Marketing
Corp. v. Allied Banking Corp., G.R. No. 129788,
Dec. 3, 2002)
Res judicata aims to accord stability to judgments.
Without it, multiplicity of action would be the order
of the day. Do away with the principle and there
shall be no end to litigation. (San Pedro v. Binalay,
G.R. 126207, Aug. 25, 2005)
According to the doctrine of res judicata, 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 matters in issue in
the first suit. (Agustin v. Spouses Delos Santos,
G.R. No. 168139, Jan. 20, 2009)
Two Aspects of Res Judicata
1. Bar by Prior Judgment – the judgment or final
order is a bar to the prosecution of a
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subsequent action based on the same claim or
cause of action. (see Sec. 39(b), Rule 47)
2. Conclusiveness of Judgment – the judgment
or final order precludes the re-litigation of
particular issues or facts on a different demand
or cause of action. (see Sec. 39(c), Rule 47)
(San Pedro v. Binalay, G.R. 126207, Aug. 25,
2005)
Res Judicata – Bar by Prior Judgment
To be an absolute bar to the subsequent action,
the following requisites must concur:
1. There must be a final judgment or order;
2. the court rendering it must have jurisdiction
over the subject matter and the parties;
3. It must be a judgment or order on the merits;
and
4. There must be between the two cases identity
of parties, subject matter and causes of action.
(Id.)
In one case, the plaintiff filed a case for specific
performance to deliver to him the title and
necessarily the ownership of a parcel of land he
allegedly purchased from the defendant, but
subsequently, he filed a Motion to Withdraw
Complaint resulting to its dismissal. Subsequently,
the same plaintiff filed an accion reivindicatoria
against the same defendant covering the same
parcel of land. The Court held that the
requirements of res judicata were met and thereby
bars the same by prior judgment. The net effect of
the two actions is to peremptorily secure title,
possession and ownership of the same piece of
land. (Id.)
Res Judicata – Conclusiveness of Judgment
The general rule precluding the relitigation of
material facts or questions which were in issue and
adjudicated in former action are commonly applied
to all matters essentially connected with the
subject matter of the litigation. Thus, it extends to
questions necessarily involved in an issue, and
necessarily adjudicated, or necessarily implied in
the final judgment, although no specific finding
may have been made in reference thereto, and
although such matters were directly referred to in
the pleadings and were not actually or formally
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presented. (Smith Bell & Co. vs. CA, G.R. No.
56294, May 20, 1991)
In one case, an accident involving two ships
occurred, and two cases were filed by two different
sets of cargo owners. The two cases were filed in
different trial courts but both held that Ship 1 is
negligent and that it must pay damages to the
owners of the cargoes in Ship 2. The first case was
appealed and reviewed by the CA and the SC,
respectively, and both courts affirmed the ruling of
the trial court. This case became final and
executory. However, upon appeal in the CA of the
second case, the latter reversed the trial court
ruling and held that Ship 2 and not Ship 1 was
negligent. Applying the rule of conclusiveness of
judgment, the question of which vessel had been
negligent in the collision had long been settled by
this Court and could no longer be relitigated. (Id.)
Stare Decisis
The rule of stare decisis is entrenched in Article 8
of the Civil Code which states that judicial
decisions applying and interpreting the laws shall
form part of the legal system. (Castillo v.
Sandiganbayan, G.R. No. 138231, February 21,
2002)
The doctrine enjoins adherence to judicial
precedents and requires courts in a country to
follow the rule established in a decision of the
Supreme Court thereof. (Umali v. Judicial and Bar
Council, G.R. No. 228628, Jul. 25, 2017).
The interpretation or construction of a law by
courts constitutes a part of the law as of the
date the statute is enacted. It is only when a prior
ruling of this Court is overruled, and a different
view is adopted, that the new doctrine may have
to be applied prospectively in favor of parties who
have relied on the old doctrine and have acted in
good faith. (Ting v. Velez-Ting, G.R. No. 166562,
Mar. 31, 2009).
The doctrine of stare decisis is based upon the
legal principle or rule involved and not upon the
judgment which results therefrom. In this particular
sense stare decisis differs from res judicata which
is based upon the judgment. (Confederation of
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Sugar Producers Association, Inc. v. Department
of Agrarian Reform, G.R. No. 169514, Mar. 30,
2007)
Decisions of lower courts or other divisions of the
same court are not binding on others. No grave
abuse of discretion is committed when a judge
sets aside an earlier ruling rendered by the
previous judge in the same trial court branch for
the same case, especially when, as in this case, a
reversible error had been committed. (Gotesco
Properties, Inc. v. International Exchange Bank,
G.R. No. 212262, Aug. 26, 2020)
Doctrine of Law of the Case
Law of the case has been defined as the opinion
delivered on a former appeal. It means that
whatever is once irrevocably established as the
controlling legal rule of decision between the same
parties in the same case continues to be the law
of the case whether correct on general principles
or not, so long as the facts on which such decision
was predicated continue to be the facts of the case
before the court. (Radio Communications of the
Philippines v. CA, G.R. No. 139762, Apr. 26, 2006)
The rationale behind this rule is to enable an
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. (Spouses Sy v.
Young, G.R. No. 169214, June 19, 2013)
This principle finds application in cases where an
appellate court passes on a question and remands
the case to the lower court for further proceedings.
(RIANO, 2019, p. 539)
In one case, the petitioner filed an injunction
against the private respondent to open the gates
in an alley over which an easement exists. The
RTC, in a summary judgment, ruled in favor of
petitioner, upholding the existence of the
easement. The CA reversed the RTC, holding that
the case should not have been summarily
adjudged. The SC then reversed the CA. In so
ruling, the SC held that in another case decided by
the CA (CA-GR No. 13421), the latter denied the
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REMEDIAL LAW
private respondent’s petition to cancel the
annotation of the easement in his title. The SC
ruled that CA-GR No. 13421 is the law of the case
because clearly, it was brought to determine the
rights of the parties regarding the easement, which
is the subject of the controversy in this case,
although as a petition for "cancellation of
annotation," it may have suggested a different
cause of action. (Solid Manila Corp. v. Bio Hong
Trading Co., Inc., G.R. No. 90596, Apr. 8, 1991).
Res Judicata v. Law of the Case
RES JUDICATA
2. The judgment for or against one of them will not
necessarily affect the other. (Fernandez v. Sta.
Maria, G.R. No. 160730, 2004)
It is NOT proper in actions against solidary
debtors. (Id.)
Where a common cause of action exists against
the defendants, as in actions against solidary
debtors, a several judgment is not proper. (De
Leon v. Court of Appeals, G.R. No. 138884, June
6, 2002)
LAW OF THE CASE
Involves
the Involves
the
preclusion to the controlling legal rule
subsequent
action irrevocably
involving the same established on a
parties and same former appeal which
cause of action OR shall
govern
the
the finality of the parties in the same
issues or facts settled case.
in the case.
Applies
to
a Applies only to the
subsequent case.
same case.
Relates to issues of Relates to questions
fact and law.
of law
(Spouses Sy v. Young, G.R. No. 169214, Jun. 19,
2013).
Several Judgments
It is a judgment rendered by a court, when proper,
against one or more defendants and NOT against
all of them leaving the action to proceed against
the others. (Sec. 4, Rule 36).
Judgment may be given for or against one or more
of the several plaintiffs or one or more of the
several defendants. When justice so requires, the
court may require such parties on each side to file
adversary pleadings as between themselves and
determine their ultimate rights and obligations.
(Sec. 3, Rule 36).
Several judgment is proper where:
1. 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
Judgment for or against one or more of several
parties judgment may be given for or against one
or more of several plaintiffs, and for or against one
or more of several defendants.
When justice so demands, the court may require
the parties on each side to file adversary pleadings
as between themselves and determine their
ultimate rights and obligations. (Rule 36, Sec. 3)
Separate Judgment
Judgment rendered to dispose of one of the
several claims for relief presented in an action.
Such judgment terminates the claim, leaving the
action to proceed as to the remaining claims. (Sec.
5, Rule 36).
When Can Court Render Separate Judgment
The court may render a separate judgment when
the following are present:
1. There is more than one claim for relief
presented in the action; and
2. There is 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; (Id.)
The court may render a separate judgment at any
stage of the trial. (Id.)
In case of a separate judgment, the court may stay
its enforcement until rendition of the subsequent
judgment/s. The court may likewise prescribe
conditions to secure the benefit thereof to the party
in whose favor the judgment is rendered. (Id.)
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Judgment against Entity without Juridical
Personality
When judgment is rendered against two or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual or proper names, if known. (Sec. 6, Rule
36).
R. POST-JUDGMENT REMEDIES
1. MOTION FOR NEW TRIAL OR
RECONSIDERATION
Requirements
MOTION FOR NEW TRIAL
MOTION FOR RECONSIDERATION
1. Must be in writing;
2. Must be supported by evidence:
a. If ground is Fraud, Accident, Mistake, or
Excusable Negligence (FAME):
i. Affidavit of merit setting forth the
particular facts claimed to constitute a
meritorious cause of action;
b. If ground is newly-discovered evidence
(NDE):
i. Affidavit of new witnesses; and
ii. Duly authenticated documents to be
introduced.
3. Written notice served to adverse party (Sec. 2,
Rule 37)
1. Must be in writing;
2. Must point out specifically the conclusion/s of
judgment or final order being questioned;
3. Grounds:
a. Excessive damages
b. Insufficient evidence (factual ground)
c. Contrary to law (legal ground)
(Rule 37, Sec. 1)
4. Specific assignment of the findings that are
challenged with express reference to
testimonial or documentary evidence or to
provisions of law;
5. Written notice served to adverse party (Sec. 2,
Rule 37)
Affidavit of Merit
One which recites the nature and character of
FAME on which the motion for new trial is based.
It must state the movant’s good and substantial
cause of action or defense and the evidence
he/she intends to present if the motion is granted
which evidence should be such as to warrant
reasonable belief that the result of the case would
probably be otherwise. (Nuguid & Nuguid v.
Cariño, G.R. No. L-12379, 1958).
The allegations contained in an affidavit of merit
required to be attached to a motion for a new trial
need not be embodied in a separate document but
may be incorporated in the petition itself. (Capuz
vs. CA, G.R. No. 112795, 1994)
Effect of Motion for New Trial or
Reconsideration and Notice Thereof
It suspends or tolls the running of the reglementary
period to appeal. (Sec. 2, Rule 40; Sec. 3, Rule
41).
Pro forma Motion (Sec. 2, Rule 37)
A pro forma motion is a motion that does NOT
comply with Rule 37, i.e., that the motion must:
a. Point out specifically the findings or
conclusions of the judgment as are contrary to
law;
b. Fails to make express reference to the
testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such
findings or conclusions;
c. Merely intended to delay the proceedings; or
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d. There is no affidavit of merit. (Marikina Valley
Development Corp. v. Flojo, G.R. No. 110801,
1995).
A pro forma motion will not stay or suspend the
reglementary period. (Id.).
A motion for reconsideration is NOT pro forma just
because it reiterated the arguments earlier passed
upon and rejected by the appellate court. This is
because a movant may raise the same arguments
precisely to convince the court that its ruling was
erroneous. (Security Bank v. Cuenca, GR No.
151914, 2002)
REMEDIAL LAW
Example: preventing a witness from testifying or
collusive suppression by plaintiff’s counsel of a
material evidence vital to plaintiff’s cause of action.
Intrinsic Fraud
Intrinsic fraud takes the form of acts of a party in a
litigation during the trial which did not affect the
presentation of the case but did prevent a fair and
just determination of the case. (Libudan vs. Gil,
G.R. No. L-21163, 1972)
Example: use of forged instruments or perjured
testimony during trial.
Moreover, the rule (that a motion is pro forma if it
only repeats the arguments in the previous
pleadings) will NOT apply if said arguments were
not squarely passed upon and answered in the
decision sought to be reconsidered. (Ong Yong v.
Tiu, GR No. 144476, 2003)
For the next three grounds – accident, mistake,
and excusable negligence, it must be something
which ordinary prudence could not have guarded
against and by reason of which the party applying
has probably been impaired in his rights. (De
Leon, Appellate Remedies, 2013, p.21)
Where the circumstances of a case do not show
an intent on the part of the pleader to merely delay
the proceedings, and his motion reveals a bona
fide effort to present additional matters or to
reiterate his arguments in a different light, the
courts should be slow to declare the same outright
as pro forma. (Philippine National Bank v. Paneda,
G.R. No. 149236, 2007).
Accident
It is an event that takes place without one’s
reasonable foresight or expectation. (McEntee v.
Manotok, G.R. No. L-14968, 1961)
a. Grounds
MOTION FOR NEW TRIAL
Grounds for Motion for New Trial
a. Extrinsic FAME – that which ordinary
prudence could not have guarded against and
by reason of which such aggrieved party has
probably been impaired in his rights
b. Newly-discovered evidence (NDE) – that
which could not, with reasonable diligence,
have been discovered and produced at the
trial, and which, if presented, would probably
alter the result. (Sec. 1, Rule 37)
Extrinsic Fraud
Extrinsic or collateral fraud connotes any
fraudulent scheme executed by a prevailing litigant
outside the trial of a case against the defeated
party, or his agents, attorneys, or witnesses
whereby said defeated party is prevented from
presenting fully and fairly his side of the case.
(Libudan vs. Gil, G.R. No. L-21163, 1972)
Mistake
The general rule is that only mistakes of fact (as
opposed to mistake of law) may be a ground for
new trial. Thus, the petitioner’s claim of having
committed an honest mistake in not filing an
answer to respondent’s petition for prohibition and
declaratory relief because of its belief that the RTC
did not acquire jurisdiction over it was held to be a
mistake of law which cannot be a ground for new
trial. (Viking Industrial Corporation v. CA GR No.
143794, 2004)
Excusable Negligence
The test of excusable negligence is whether a
party has acted with ordinary prudence while
transacting an important business. (Philippine
Phosphate Fertilizer Corporation v. Commissioner
of Internal Revenue, 2005).
General Rule: Negligence and mistakes of
counsel are binding on the client. (Lagua v. Court
of Appeals, G.R. No. 173390, 2012).
Exception: Such negligence of a counsel may be
a ground for new trial if it is so patent that the party
is prejudiced and prevented from fairly presenting
his/her case:
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1. Where the gross negligence of counsel
deprives the client of due process of law;
2. When the application of the rule will result in the
deprivation of client’s right and the party was
prejudiced; and
3. Where the interest of justice so requires.
(Redena vs. CA, G.R. No. 146611, 2007)
For a claim of counsel’s negligence to prosper, the
clear abandonment of the client’s cause must be
shown. (Multi-trans Agency v. Oriental Assurance
G.R. No. 180817, 2009)
Newly-Discovered Evidence
Requisites:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered
and produced at trial despite the exercise of
reasonable diligence;
3. It is material, not merely cumulative,
corroborative or impeaching; and
4. It is of such weight that, if admitted, will
probably change the judgment. (Tumang v. CA,
G.R. Nos. 82346-47, 1989)
Forgotten Evidence
As distinguished from newly-discovered evidence,
forgotten evidence may be seen to refer to
evidence already in existence or available before
or during trial, which was known to and obtainable
by the party offering it, and which could have been
presented and offered in a seasonable manner
were it not for the oversight or forgetfulness of
such party or his counsel. (Tumang v. Court of
Appeals, G.R. No. 82072, 1989).
The question of whether evidence is newly
discovered has two aspects: a temporal one
(where was the evidence discovered), and a
predictive one (when it should or could have been
discovered). (Dinglasan v. CA, G.R. No. 145420,
2006)
If the documents belatedly submitted are public
records, they cannot be considered as “newly
discovered” since these are readily available and
accessible and could be secured during trial with
the use of reasonable diligence. (Heirs of Emilio
Santioque v. Heirs of Emilio Calma, GR No.
160832, 2006)
Newly-discovered evidence need not be newlycreated evidence. (Tumang v. CA, G.R. Nos.
82346-47, 1989)
REMEDIAL LAW
Motion for New Trial in the Court of Appeals
Rule 53 (Motion for New Trial in the Court of
Appeals) has its own rules:
1. It may be filed anytime after an appeal has
been perfected and before the Court of
Appeals loses jurisdiction over the case;
2. The only ground is newly discovered
evidence. (Sec. 1, Rule 53).
Motion for New Trial in the Supreme Court
As a general rule, the judgment of the Court of
Appeals is conclusive as to the facts, and cannot
be reviewed by the Supreme Court Accordingly, in
an appeal by certiorari to the Supreme Court, as
the latter has no jurisdiction to entertain a motion
for new trial on the ground of newly-discovered
evidence, for only questions of fact are involved
therein. Nonetheless, the rule now appears to
have been relaxed, if not abandoned, in
subsequent cases, as the Court, opting to brush
aside technicalities, granted new trials to the
convicted accused concerned on the basis of
proposed testimonies or affidavits of persons
which the Court considered as newly discovered
and probably sufficient evidence to reverse the
judgment of conviction. (Cuenca v. Court of
Appeals, G.R. No. 109870, 1995)
If an accused has been the victim of an unfair and
partial trial, the Supreme Court will not hesitate to
order a new trial in the interest of justice. (Martinez
v. Gironella, G.R. No. L-37635, Jul. 22, 1975)
MOTION FOR RECONSIDERATION
Grounds for a Motion for Reconsideration
a. The damages awarded are excessive;
b. The evidence is insufficient to justify the
decision or final order (factual question); or
c. The decision or final order is contrary to law
(legal question)
(Sec. 1, Rule 37)
The purpose of a motion for reconsideration is for
the moving party to point to purported errors in the
assailed judgment or final order which that party
views as unsupported by law or evidence. It grants
an opportunity for the court to correct any actual or
perceived error attributed to it by reexamination of
the legal and factual circumstances of the case.
(Gotesco Properties, Inc. v. International
Exchange Bank, G.R. No. 212262, 2020)
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c. Denial Of The Motion; Effect
A winning litigant may also move for
reconsideration of a part or parts of a decision or
final order. (Balanoba v. Madriaga, GR No.
160109, 2005)
Motions for Extension Of Time
Motions for extension of time to file a motion for
reconsideration may be filed only in connection
with cases pending before the Supreme Court,
which may in its sound discretion either grant or
deny the extension requested. (Habaluyas
Enterprises v Japson, GR No. 70895, 1986; see
also Sec. 2, Rule 40; Sec. 3, Rule 41)
The Habaluyas ruling applies even if the motion is
filed before the expiration of the reglementary
period. (Fernandez v. CA, GR No. 131094, 2005)
b. When To File
MOTION FOR
NEW TRIAL
MOTION FOR
RECONSIDERATION
WHEN TO FILE
(Rule 37, Sec. 1; Rule 40, Sec. 2; Rule 41,
Sec. 3)
Within the period for Same as Motion for
taking an appeal. This New Trial
is within 15 days if a
notice of appeal is to
be filed or 30 days if a
record on appeal is
required after receipt of
notice to the appellant
of the judgment or final
order appealed from.
WHERE TO FILE
(Rule 37, Sec. 1)
With the court which Same as Motion for
rendered
the New Trial.
questioned judgment
or final order.
MOTION FOR
NEW TRIAL
MOTION FOR
RECONSIDERATION
If
denied,
not Same as Motion for
appealable; remedy is New Trial
to appeal from the
judgment or final order.
(Rule 37, Sec. 9)
If the motion is denied,
the movant has a
“fresh period” of 15
days from receipt or
notice of the order
denying or dismissing
the motion for new trial
from which to file a
notice
of
appeal.
(Neypes v. CA, G.R.
No. 141524, Sep. 14,
2005)
Exception:
appeal
denial
via
R65
certiorari on grave
abuse of discretion
amounting to lack or
excess of jurisdiction
d. Grant Of The Motion; Effect
MOTION FOR
NEW TRIAL
MOTION FOR
RECONSIDERATION
GRANT OF MOTION
(Rule 37, Sec. 6)
If a new trial is granted,
the trial court will set
aside the judgment or
final order. The case
stands for trial de novo
and will be tried anew.
The recorded evidence
taken upon the former
trial, insofar as the
same is material and
competent to establish
the issues, shall be
used at the new trial
If the court finds that
excessive
damages
have been awarded or
that the judgment or
final order is contrary
to the evidence or law,
it may amend such
judgment or final order
accordingly.
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without
same.
retaking
REMEDIAL LAW
2. APPEALS
the
a. Judgments And Final Orders Subject To
Appeal
PARTIAL GRANT OF MOTION
(Rule 37, Sec. 7)
A partial new trial is
allowed where less
than all of the issues
are ordered retried.
The court may either
enter a judgment or
final order as to the
rest or stay the
enforcement of such
judgment or final order
until after new trial.
A
partial
reconsideration
is
allowed when 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
order may grant a
reconsideration as to
such
issues
if
severable
without
interfering with the final
judgment or order
upon the rest.
e. Remedy When Motion Is Denied, Fresh
15-Day Period
A party shall have a FRESH PERIOD of 15 days
to file a notice of appeal to the RTC from receipt of
the order denying a motion for new trial or motion
for reconsideration. (Neypes v. CA, G.R. No.
141524, 2005)
This rule shall apply to Rules 40, 41, 42, 43 and
45 and in criminal cases under Section 6 of Rule
122 of the Revised Rules of Criminal Procedure.
(Yu vs. Tatad, G.R. No. 170979, 2011)
Note:
1. Rule 40 – Appeals from MTC to RTC
2. Rule 41 – Appeals from RTC to CA from
decisions rendered by the RTC in the exercise
of its original jurisdiction
3. Rule 42 – Petitions for review from RTC to CA
from decisions of the RTC in the exercise of its
appellate jurisdiction
4. Rule 43 – Appeals from Quasi-Judicial
Agencies to CA
5. Rule 45 – Appeals by petition for review on
certiorari to SC
Nature of an Appeal
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, one who seeks to avail of the right to appeal
must comply with the requirements of the Rules.
Failure to do so often leads to the loss of the right
to appeal. (Neypes v. CA, G.R. No. 141524, 2005)
An appeal may be taken only from judgments or
final orders that completely dispose of the case.
(Sec. 1, Rule 37; Sec. 2, Rule 40; Sec. 3, Rule 41)
Final Order vs. Interlocutory Order
A final judgment or order is one that finally
disposes of a case, leaving nothing more for the
court to do with respect to it. It is an adjudication
on the merits which, considering the evidence
presented at the trial, declares categorically what
the rights and obligations of the parties are; or it
may be an order or judgment that dismisses an
action. (Neypes v. CA, G.R. No. 141524, 2005)
An interlocutory order is one which does not in
itself definitely settle or conclude any of the rights
of the parties to the action. (Dais v. Garduño, G.R.
No. 25523, 1926)
An interlocutory order is NOT appealable until after
a judgment on the merits has been rendered. (Sec.
1(b), Rule 41).
Certiorari under Rule 65 may be availed of to
contest an interlocutory order to correct a patent
abuse of discretion by the lower Court in issuing
the same. (Villalon, Jr. v. IAC, G.R. No. 73751,
1986)
Appeals in Criminal Cases
Where the RTC imposes the death penalty, the CA
automatically reviews the judgment (Sec. 3[d],
Rule 122).
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If the CA finds that the death penalty shall be
imposed, it shall not render judgment but certify
and elevate the case to the SC for review. (Sec.
13[a], Rule 124)
b. Matters Not Appealable
Please see the discussions under Rule 41.
c. Remedy Against Judgments And Orders
Which Are Not Appealable
In those instances where the judgment or final
order is not appealable, the aggrieved party may
file a special civil action for certiorari under Rule
65. (Id.)
d. Modes Of Appeal
i. Ordinary Appeal
An appeal where judgment was rendered by the
court in the exercise of its original jurisdiction. It is
also known as an appeal by writ of error. (RIANO,
2019, p. 589).
RULE 40 – appeal from MTC to RTC
RULE 41 – appeal from RTC from its decisions
rendered in the exercise of its original jurisdiction
REMEDIAL LAW
e. Issues To Be Raised On Appeal
NOTE: The issues that may be raised on appeal
depend on the kind of appeal filed.
1) Questions of FACT – exists when the doubt
or difference arises as to the truth or the
falsehood of alleged facts; or when the query
necessarily invites calibration of the whole
evidence considering mainly the credibility of
witnesses, existence and relevancy of specific
surrounding circumstances, their relation to
each other and to the whole and the
probabilities of the situation (Sesbreno vs. CA,
G.R. No. 84096, 1995); (Cirtek Employees
Labor Union vs. Cirtek Electronics, Inc., G.R.
No. 190515, 2011);
2) Questions of LAW – exists when the doubt or
difference arises as to what the applicable law
is on certain state of facts (Sesbreno vs. CA,
G.R. No. 84096, 1995); (Cirtek Employees
Labor Union vs. Cirtek Electronics, Inc., G.R.
No. 190515, 2011);
3) Mixed Questions of FACT and LAW
MODE OF APPEAL
and
ISSUES TO BE RAISED
Questions of Fact, Law, or Both
ii. Petition For Review (Rule 42)
An appeal where judgment was rendered by the
court in the exercise of its appellate jurisdiction.
(Id.)
iii. Petition For Review On Certiorari (Rule 45)
An appeal from a judgment or final order of the
Regional Trial Court in the exercise of its original
jurisdiction directly to the Supreme Court on pure
questions of law. (Id.)
Note: It also pertains to an appeal from the
judgment, final order or resolutions of the Court of
Appeals, Sandiganbayan, Court of Tax Appeals en
banc. (Sec. 1, Rule 45).
1) Rule 40 - Appeal from MTC to RTC
 Notice of Appeal filed with the MTC and
payment of fees
2) Rule 41 - Appeal from RTC (exercising
original jurisdiction) to CA
 Notice of Appeal filed with the RTC and
payment of fees
3) Rule 42 - Appeal from RTC (exercising
appellate jurisdiction) to CA
 Petition for Review filed with RTC with
payment of fees
4) Rule 43 - Appeal from QJA to CA
 Petition for Review filed with CA with
payment of fees
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5) Rule 45 - Appeal from CA, CTA en banc,
and Sandiganbayan to SC
 Petition for Review on Certiorari
filed with the SC with payment of
fees
Generally, Question of Law Only
1) Rule 45 - Appeal from RTC to SC.
 Petition for Review on Certiorari
filed with the SC with payment of
fees
Exceptions (may raise questions of fact):
Based on SC Circulars:
1. Writ of Amparo
2. Writ of Habeas Data
3. Writ of Kalikasan
Exceptions Based on Jurisprudence:
1. When the factual findings of the Court of
Appeals and the trial court are
contradictory;
2. When the conclusion is a finding
grounded entirely on speculation,
surmises, or conjectures;
3. When the inference made by the Court
of Appeals from its findings of fact is
manifestly mistaken,
absurd,
or
impossible;
REMEDIAL LAW
4. When there is a grave abuse of
discretion in the appreciation of facts;
5. When the appellate court, in making its
findings, went beyond the issues of the
case and such findings are contrary to
the admissions of both appellant and
appellee;
6. When the judgment of the Court of
Appeals
is
premised
on
a
misapprehension of facts;
7. When the Court of Appeals failed to
notice certain relevant facts which, if
properly considered, would justify a
different conclusion;
8. When the findings of fact are
themselves conflicting;
9. When the findings of fact are
conclusions without citation of the
specific evidence on which they are
based; and
10. When the findings of fact of the Court of
Appeals are premised on the absence
of evidence but the evidence on record
contradicts such findings. (Local
Superior vs. Jody King, G.R.
No. 141715, 2005)
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f. Period Of Appeal
REMEDY
Rule 37 MR/MNT
-
Rule 38 Petition for Relief from Judgment
Rule 40 Appeal from MTC
to RTC
-
Rule 41 Appeal from RTC
(original) to CA
-
Rule 42 Petition for Review
from RTC (appellate) to CA
-
Rule 43 Appeals from
quasi-judicial agencies to
CA
-
Rule 45 Petition for review
on certiorari from RTC, CA,
CTA En Banc to the SC
-
Rule 47
Judgments
Annulment of
-
PERIOD
Within 15 days (if notice of appeal) or 30 days (if record on appeal) from
notice of final judgment or final order (Sec. 1, Rule 37 in relation to Sec.
2, Rule 40; Sec. 3, Rule 41).
No extension allowed (Id.)
2nd MR not allowed (Sec. 5, Rule 37)
Within 60 days after knowledge but not more than 6 months after entry
of judgment
Non-extendible (Sec. 3, Rule 38).
Within 15 days (if notice of appeal) or 30 days (if record on appeal) from
notice of final judgment or final order (Sec. 2, Rule 40).
MR/MNT will toll the period to file appeal; fresh period is given from
receipt of order of denial of MNT/MR (Neypes v. CA, G.R. No. 141524,
2005).
Non-extendible (Sec. 2, Rule 40)
Full payment of appeal fees within the period to appeal (Sec. 5, Rule
40)
Within 15 days (if notice of appeal)) or 30 days (if record on appeal)
from notice of final judgment or final order (Sec. 3, Rule 41).
MR/MNT will toll the period to file appeal; fresh period is given from
receipt of order of denial of MNT/MR (Neypes v. CA, G.R. No. 141524,
2005).
Non-extendible (Sec. 3, Rule 41).
Full payment of appeal fees within the period to appeal (Sec. 4, Rule
41).
Within 15 days from notice of decision (Sec. 1, Rule 42).
Extendible for 15 days upon proper motion and payment of the full
amount of docket and other lawful fees and deposit for costs before the
expiration of the reglementary period (Id.).
Extendible again up to 15 days but only based on the most compelling
reasons (Id.).
15 days from notice of the award, judgment, final order or resolution, or
from the date of its last publication, if publication is required by law for
its effectivity, or of 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 (Sec. 4, Rule 43).
Only one (1) motion for reconsideration shall be allowed (Id.).
Extendible again up to 15 days but only based on the most compelling
reasons (Id.).
Within 15 days from notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioner's motion for new trial or
reconsideration (Sec. 2, Rule 45).
Extendible for 30 days on justifiable reasons upon motion duly filed and
served, with full payment of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary period (Id.).
Extrinsic fraud: 4 years from discovery (Sec. 3, Rule 47).
Lack of jurisdiction: before it is barred by laches or estoppel (Id.).
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REMEDIAL LAW
RULE 64
Review of
Judgments
and
Final
Orders or Resolutions of
COMELEC and the COA
-
Rule 65 – Certiorari,
Prohibition, Mandamus
-
Within 30 days from notice of the judgment or final order or resolution
sought to be reviewed. (Sec. 3, Rule 64).
MR or MNT, if allowed under the procedural rules of the Commission
concerned, shall interrupt the period herein fixed (no fresh period)
(Lokin, Jr. v. Commission on Elections, G.R. No. 193808, Jun. 26,
2012).
If the motion is denied, the aggrieved party may file the petition within
the remaining period, which shall not be less than 5 days, reckoned
from notice of denial. (Sec. 3, Rule 64).
Within 60 days from notice of the judgment, order or resolution (Sec.
4, Rule 65).
MR/MNT will trigger fresh period of 60 days from receipt of order of
denial (Id.).
g. Perfection Of Appeal
with each part susceptible of being finally
determined and terminated independently of the
other parts. (Id.)
Rules 40 And 41
Rule 42
1. If by notice of appeal:
- Appeal is deemed perfected as to the party
appealing upon the filing of the notice of
appeal and full payment of appeal fees in
due time.
2. If by record on appeal:
- Appeal is deemed perfected as to the party
appealing upon the approval of the record on
appeal filed in due time. (Sec. 4, Rule 40; Sec.
9, Rule 41)
NOTICE OF APPEAL
An appeal by notice of
appeal is the elevation
of the original records
to the appellate court.
RECORD ON
APPEAL
The record on appeal
enables the trial court
to continue with the
rest of the case
because the original
records remain with
the trial court even as it
affords the appellate
court
the
full
opportunity to review
and
decide
the
appealed matter.
(De Leon, Appellate Remedies, 2013, p. 53, citing
Lebin vs. Mirasol, G.R. No. 164255, 2011)
The ostensible reason for requiring a record on
appeal instead of only a notice of appeal is the
multi-part nature of nearly all special proceedings,
How to Appeal
Appeal is perfected as to petitioner upon timely:
1. FILING of a notice of appeal within 15 or 30
days from notice of judgment or final order with
the court that rendered it, and SERVE upon the
adverse party; and
2. PAYMENT of the full amount of the appellate
court docket and other legal fees to the clerk of
the court which rendered the judgment or final
order. (BUT, failure to pay warrants only
discretion to dismiss the appeal.) (Sec. 3, Rule
40)
The notice of appeal should indicate:
1. Parties to the appeal.
2. Date of judgment or final order or part thereof
appealed from.
3. Court to which the appeal is being taken; and
Material dates showing the timeliness of the
appeal (i.e., when the judgment or final order was
received, when the motion for reconsideration or
new trial was filed, and when denial of the motion
for reconsideration or motion for new trial was
received) (i.e., Material Data Rule). (Id.).
Participation of the Solicitor General During
Appeal
According to Book IV, Title III, Chapter 12, Section
35(1) of the Administrative Code of 1987, the
Office of the Solicitor General shall “represent the
Government in the Supreme Court and the Court
of Appeals in all criminal proceedings; represent
the Government and its officers in the Supreme
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Court and Court of Appeals, and all other courts or
tribunals in all civil actions and special
proceedings in which the Government or any
officer thereof in his official capacity is a party.”
The Solicitor General is the sole representative of
the People of the Philippines in appeals before the
CA and the SC. Failure to have a copy of a petition
served on the People of the Philippines, through
the OSG, is a sufficient ground for the dismissal of
the petition as provided in Section 3, Rule 42 of the
Rules of Court. (People v. Duca, G.R. No. 171175,
2009)
If there is a dismissal of a criminal case by the trial
court or if there is an acquittal of the accused, it is
only the OSG that can bring an appeal on the
criminal aspect representing the People, the State
being the real party in interest in the criminal case.
(People v. Piccio, et al., G.R. No. 193681, 2014)
h. Appeal From Judgments Or Final Orders
Of The Mtc (Rule 40)
Where to Appeal
The appeal may be taken to the RTC exercising
jurisdiction over the area to which the former
pertains. (Rule 40, Sec. 1)
The title of the case shall remain as it was in the
court of origin, but the party appealing shall be
further referred to as the appellant and the adverse
party, the appellee.
After an appeal to the RTC has been perfected,
the MTC loses jurisdiction over the case and any
motion for the execution of the judgment should be
filed with the RTC (Rule 40, Section 1), subject to
the MTC’s residual jurisdiction under Rule 41,
Section 9 in relation to Rule 40, Section 4.
Mode of Appeal
The appeal is taken by filing a notice of appeal
with the court that rendered the judgment or final
order appealed from. (Sec. 3, Rule 40)
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
REMEDIAL LAW
an appeal. (Crisologo v. Daray A.M. No. RTJ-072036, 2006)
Record on Appeal
A record of appeal is required only in:
a. Certain kinds of special proceedings; or
b. Other cases of multiple or separate appeals.
(Sec. 3, Rule 40)
The record of appeal should:
1. State the full names of the parties to the
proceedings in its caption
2. Include:
i. Judgment or final order from which the
appeal is taken.
ii. In chronological order, copies of such
pleadings, petitions, motions, and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue involved;
and
iii. Such data as will show that the appeal was
perfected on time.
3. Contain a subject index, if it exceeds 20 pages.
(Sec. 3, Rule 40 in relation to Sec. 6, Rule 41).
Copies of the notice of appeal and the record on
appeal (when required) shall be served on the
adverse party.
Material Data Rule
The material dates required to be stated in the
petition are the following:
1. The date of receipt of the judgment or final
order or resolution subject of the petition;
2. The date of filing of a motion for new trial or
reconsideration, if any; and
3. The date of receipt of the notice of the denial of
the motion. (Castilex Industrial Corp. v.
Vasquez, Jr., G.R. No. 132266, 1999).
The whole purpose of the statutory and
reglementary requirements on material dates is to
established the timeliness of the appeal or petition
for review, since otherwise, the appealed decision
would already be final and executory and the
appellate or reviewing court would be rendered
without jurisdiction, where there exist no valid
grounds to seek relief from final judgment.
(Canturna v. Court of Appeals, G.R. No. L-40934,
[Apr. 30, 1976)
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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. (Sec. 5, Rule 40)
Proof of payment shall be transmitted to appellate
court together with the original record or the record
on appeal, as the case may be. (Id.)
Note: It is the responsibility of the MTC clerk of
court to attach appellant’s proof of payment to the
original record. Whatever omission or negligence
on the part of such clerk of court should not
adversely affect the appellant. (De Leon, Appellate
Remedies, 2013, p. 42)
Payment of docket fees within the period to appeal
is MANDATORY for the perfection of an appeal.
Without such payment, the appellate court does
not acquire jurisdiction over the subject matter of
the action and the decision sought to be appealed
becomes final and executory. (Alfonso vs. Andres,
G.R. 139611, 2002).
The payment of the appellate docket fee is not a
mere technicality of law or procedure but an
essential requirement for the perfection of an
appeal (Enriquez vs. Enriquez, G.R. No. 139303,
2005), and without which, the decision or final
order appealed from would become final and
executory, as if no appeal was filed at all. (Sps.
Manalili vs. Sps. De Leon, G.R. No. 140858, 2001)
Note: While, in appealed cases, the full payment
of the appellate docket fees within the prescribed
period is mandatory, even jurisdictional, the
decision to dismiss the case is only discretionary
as opposed to automatic dismissal of the appeal.
(De Leon, Appellate Remedies, 2013, p. 41) This
is true under Rule 40 (Badillo v. Tayag, G.R. No.
143976, 2003)
General Rule: The court will dismiss the appeal
when there is no full payment of appellate docket
fees within the prescribed period to appeal.
REMEDIAL LAW
Exceptions: The following instances warrant a
relaxation of the application of rules on payment of
docket fees:
a. Most persuasive and weighty reasons;
b. To relieve a litigant from an injustice not
commensurate with his/her failure to comply
with the prescribed procedure;
c. Good faith of the defaulting party by
immediately paying within a reasonable time
from the time of default;
d. The existence of special or compelling
circumstances;
e. The merits of the case;
f. A cause not entirely attributable to the fault or
negligence of the party favored by the
suspension of the rules;
g. A lack of any showing that the review sought is
merely frivolous and dilatory;
h. The other party will not be unjustly prejudiced
thereby;
i. Fraud, accident, mistake or excusable
negligence without appellant’s fault;
j. Peculiar legal and equitable circumstances
attendant to each case;
k. In the name of substantial justice and fair play.;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge
guided by all the attendant circumstances.
(Villena v. Rupisan, GR No. 167620, 2007)
Considerations in Invoking Liberality
The party invoking liberality should adequately
explain his failure to abide by the rules. (Navarro
vs. Metrobank, G.R. No. 138031, 2004)
Anyone seeking an exemption has the burden of
proving that exceptionally meritorious instances
exist which warrant departure from the Rule (RP
vs. CA, G.R. No. 129846, 2000).
Duty of the Clerk of Court
Within fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the original
record on appeal, together with the transcripts and
exhibits, which he/she shall certify as complete, to
the proper RTC.
A copy of his/her letter of transmittal of the records
shall be furnished the parties. (Rule 40, Sec. 6)
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Note: Still, it must be emphasized that the
reckoning point for the RTC to acquire jurisdiction
over the appeal is NOT the receipt of the letter of
transmittal and of the notice of appealed case, but
the timely filing of the notice of appeal in
accordance with Sec. 9, Rule 41. (De Leon,
Appellate Remedies, 2013, p. 44)
Residual Jurisdiction of the Court
Prior to the transmittal of the original record or
record on appeal, the court which rendered
judgement may:
a. Issue orders for the protection and preservation
of the rights of the parties, which do not involve
any matter litigated by the appeal.
b. Approve compromises;
c. Permit appeals of indigent litigants;
d. Order execution pending appeal in accordance
with Sec. 2, Rule 39; and
e. Allow withdrawal of the appeal. (Sec. 9, Rule
41).
Procedure in the Regional Trial Court
1. Upon receipt of the complete record or the
record on appeal, the clerk of court of the RTC
shall notify the parties of such fact;
2. Within fifteen (15) days from notice, it shall be
the duty of the appellant to submit a
MEMORANDUM OF APPEAL to briefly
discuss the errors imputed to the lower court,
and a copy shall be furnished by him/her to the
adverse party;
3. Within fifteen (15) days from receipt of the
appellant’s memorandum, the appellee may
file his/her MEMORANDUM OF APPEAL; and
4. Upon filing of the memorandum of the appellee,
OR the expiration of the period to do so, the
case shall be considered SUBMITTED FOR
DECISION. (Sec. 7, Rule 40)
REMEDIAL LAW
Notice Requirement
The notice to be sent to the parties cannot be
downplayed as a mere formality, for it is such
notice which sets in motion the appellate
procedure before the RTC and the running of the
prescriptive period within which the appellant must
file his/her appeal memorandum.
Moreover, the notice must be categorical enough
in stating that the RTC has already received the
records of the case. If there is no such notice or
the notice is defective in that it does not contain a
statement that the RTC is already in possession of
the records of the case, the appellant stands to
lose his/her right to seek a judicial review of his/her
case.
Thus, a notice to the effect that a case under
appeal “is entered in the Docket Book of the RTC”
was deemed insufficient to commence the appeal
before the RTC and the running of the 15-day
period within which the appellant must file his
appeal memorandum. (De Leon, Appellate
Remedies, 2013, p. 45)
The RTC Can Decide Errors Not Assigned in
the Appeal Memorandum
The RTC presently decides all appeals from the
MTC based on the entire record of the
proceedings had in the court of origin and such
memoranda or briefs as may be submitted by the
parties or required by the RTC.
As a
consequence, the RTC, in exercising its appellate
jurisdiction (i.e., in appeals from MTC to RTC), is
not limited to errors assigned in the appeal
memorandum.
The RTC shall decide the case on the basis of the
entire record of the proceedings in the court of
origin and such memoranda as are filed. (Sec.
7(c), Rule 40).
Thus, in Macaslang v. Zamora (G.R. No. 156375,
2011), it was held that the RTC, as an appellate
court, could rule on the failure of the complaint to
state a cause of action and the lack of demand to
vacate even if not assigned in the appeal. (De
Leon, Appellate Remedies, 2013, p. 49)
Failure of the APELLANT to file a memorandum
shall be a ground for the dismissal of the appeal.
The requirement for the submission of appellant’s
memorandum is a mandatory and compulsory
rule. Non-compliance therewith authorizes the
dismissal of the appeal. (Sec. 7(b), Rule 40).
Appeal from Orders Dismissing Case Without
Trial; Lack of Jurisdiction
If an appeal is taken from an order of the lower
court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or
reverse it, as the case may be. (Sec. 8, Rule 40).
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If the ground for dismissal in the MTC is lack of
jurisdiction:
A. If the RTC affirms the dismissal:
a. It shall try the case on the merits as if the
case was originally filed with it, if it has
jurisdiction over the subject matter; or
b. It shall not try the case if it has no jurisdiction
over the subject matter.
B. If the RTC reverses the dismissal, the case
shall be remanded to the MTC for further
proceedings.
(Sec. 8, Rule 40).
Appeal from Orders Dismissing Case With
Trial; Lack of Jurisdiction
If the case was tried on the merits by the lower
court without jurisdiction over the subject matter,
the RTC on appeal, shall NOT dismiss the case if
it has original jurisdiction thereof, BUT shall decide
the case WITHOUT prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice. (Id.)
Applicability of Rule 41
The other provisions of Rule 41 shall apply to
appeals provided in this Rule. Thus, the inferior
courts also exercise residual jurisdiction in the
same manner provided under paragraph 5,
Section 9 of Rule 41. (Rule 40, Sec. 9)
i. Appeal From Judgments And Final Orders
Of The RTC
Three Modes of Appeal
A. RULE 41 – Ordinary Appeal or Appeal by Writ
of Error by Notice of Appeal from RTC,
exercising original jurisdiction, to the CA.
B. RULE 42 – Petition for Review from RTC,
exercising appellate jurisdiction, to the CA.
C. RULE 45 – Petition for Review on Certiorari or
Appeal by Certiorari by Appeal to SC from
decisions of the RTC in its original jurisdiction,
only on questions of law (RIANO, 2019, p. 589;
Five Star Marketing Corp v. Booc, G.R. No.
133331, 2007)
APPEAL FROM THE
COURTS (Rule 41)
REGIONAL
TRIAL
Subject of Appeal
As mentioned, an appeal may be taken only from
judgments or final orders that completely
dispose of the case. An interlocutory order is
NOT appealable until after judgment on the merits
has been rendered. (Sec. 1, Rule 37; Sec. 2, Rule
40; Sec. 3, Rule 41)
Matters Not Appealable
No appeal may be taken from:
1. An order denying a petition for relief or any
similar motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a
judgment
by consent,
confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
5. An order of execution;
6 A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims, and third party
complaints, while the main case is ending,
unless the court allows an appeal therefrom;
and
7. An order dismissing an action without
prejudice. (Section 1, Rule 41)
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action under
Rule 65. (Id.).
Issues Cannot be Raised For the First Time on
Appeal
General Rule: Parties cannot raise issues for the
first time on appeal.
Exceptions:
a. Grounds not assigned as errors but affecting
jurisdiction over the subject matter;
b. Matters not assigned as errors on appeal but
are evidently plain or clerical errors within
contemplation of law;
c. 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;
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d. 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;
e. Matters not assigned as errors on appeal but
closely related to an error assigned; and
f. Matters not assigned as errors on appeal but
upon which the determination of a question
properly assigned, is dependent. (Spouses
Devisfruto v. Greenfell, G.R. No. 227725,
2020)
Modes of Appeal from RTC
ORDINARY
APPEAL
(RULE 41)
Appeal to the
Court
of
Appeals
in
cases decided
by the RTC in
its
original
jurisdiction.
PETITION
APPEAL BY
FOR REVIEW CERTIORARI
(RULE 42)
(RULE 45)
Appeal to the
Court
of
Appeals
in
cases decided
by the RTC in
the exercise of
its appellate
jurisdiction.
Rule 41 vs. Rule 42
ORDINARY APPEAL
(Rule 41)
PETITION FOR
REVIEW
(Rule 42)
Appeal is not a right Discretionary.
but
a
statutory
privilege; thus, appeal
must be made strictly
in accordance with the
provision set by law.
(Enriquez
vs.
Enriquez, G.R. No.
139303, 2005)
All the records are No
records
are
elevated from the court elevated unless the
of origin.
court decrees it.
Notice and record on Filed with the Court of
appeal if required are Appeals.
filed with the court of
origin;
The case was decided The case was decided
by the RTC pursuant to by the RTC pursuant to
its original jurisdiction. its
appellate
jurisdiction (i.e., the
case emanated from
the MTC).
Period to file is a Period to file is a
matter of right but is matter of right and is
NON-EXTENDIBLE.
EXTENDIBLE.
Appeal to the
Supreme
Court in all
cases decided
by the RTC
where
only
questions of
law are raised
or involved
Appeal to SC
from the CA,
Sandiganbaya
n, CTA en
banc, where
questions of
fact, law, or
both
are
raised.
By
NOTICE
OF APPEAL
with the court
which
rendered the
judgment
or
final
order
appealed from
(i.e., RTC) and
serving a copy
thereof upon
the
adverse
party.
By PETITION
FOR REVIEW
filed with the
Court
of
Appeals
in
accordance
with Rule 42
and serving a
copy thereof
upon
the
adverse party.
By PETITION
FOR REVIEW
ON
CERTIORARI
filed with the
Supreme
Court
in
accordance
with Rule 45
and serving a
copy thereof
upon
the
adverse party.
RECORD OF
APPEAL shall
be
required
only in:
1.
Special
proceedings;
2. Multiple or
separate
appeals where
the law or the
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Rules
require.
so
Questions of
fact or mixed
questions of
fact and law
Questions of
fact, of law, or
mixed
questions of
fact and law
Question
of
law only from
judgment
or
final
order
rendered by
RTC in the
exercise of its
original
jurisdiction.
Questions of
fact, law, or
both
from
decisions of
the
CA,
Sandiganbaya
n, or CTA en
banc.
Special Cases
i. RTC acting as Special Agrarian Court –
Petition for review to CA
ii. RTC acting as a Commercial Court –
Petition for review to CA
Period of Ordinary Appeal;
 Fifteen (15) days from notice of the judgment
or final order appealed from.
 If a record on appeal is required, file notice of
appeal and record on appeal within thirty (30)
days from notice of the judgment or final order.
 In HABEAS CORPUS cases, forty-eight (48)
hours from notice of judgment or final order
appealed from.
 The period shall be interrupted by a timely
Motion for New Trial or Motion for
Reconsideration.
 No motion for extension of time to file a Motion
for Reconsideration or Motion for New Trial
shall be allowed (same rule as MTC-RTC
appeals), except in cases pending with the
Supreme Court. (Rule 41, Section 3)
Period of Ordinary Appeal; Appeal in Habeas
Data Cases (A.M. No. 08-1-16-SC, Sec. 19)
1. The period of appeal shall be five (5) working
(not calendar) days from the date of notice of
the judgment or final order.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
of law or both may be raised.
Period of Ordinary Appeal; Appeal in Writ of
Amparo Cases (A.M. No. 07-9-12-SC, Sec. 19)
1. The period of appeal shall be five (5) working
(not calendar) days from the date of notice of
the adverse judgment.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
of law or both may be raised.
Period of Ordinary Appeal; Appeal in Writ of
Kalikasan Cases (A.M. No. 09-6-8-SC, Section
16)
1. The period of appeal shall be fifteen (15)
working (not calendar) days from the date of
notice of the adverse judgment.
2. Appeal shall be made directly to the Supreme
Court under Rule 45 where questions of fact or
of law or both may be raised.
Rule on Filing Appeal Within Reglementary
Period; Exception
General Rule: The failure to timely perfect an
appeal cannot simply be dismissed as a mere
technicality, for it is jurisdictional. (Nuñez v. GSIS
Family Bank, G.R. No. 163988, Nov. 17, 2005)
Exception: If there has been extrinsic FAME, then
resort to Petition for Relief from Judgment under
Rule 38 may be had. (Habaluyas v. Japson, G.R.
No. 70895, 1986)
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. (Rule 41, Sec. 4)
Proof of payment shall be transmitted to appellate
court together with the original record or the record
on appeal, as the case may be. (Id.)
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Please refer to the previous discussions on
General Rule and Exceptions with regard to
Payment of Docket Fees under Rule 40.
Notice of Appeal
The notice of appeal must:
1. Indicate the parties to the appeal;
2. Specify judgment or final order or part thereof
appealed from;
3. Specify the court to which the appeal is being
taken; and
4. State the material dates showing the timeliness
of the appeal. (Rule 41, Section 5)
Record on Appeal
The Record on Appeal shall include:
1. The full names of all the parties to the
proceedings shall be stated in the caption
2. The judgment or final order from which the
appeal is taken.
3. In chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the proper
understanding of the issues involved; and
4. Together with such data as will show that the
appeal was perfected on time (i.e., Material
Data Rule). (Rule 41, Sec. 6)
Approval of Record on Appeal
Upon filing of the record on appeal for approval
AND if no objection is filed by the appellee within
five (5) days from receipt of the copy thereof the
RTC may:
a. Approve it as presented; OR
b. Upon its own motion or at the instance of the
appellee, may direct its amendment by the
inclusion of any omitted matters which are
deemed essential to the determination of the
issue of law or fact involved in the appeal. (Rule
41, Sec. 7)
If the trial court orders the amendment thereof, the
appellant shall redraft the record by including
therein, in their proper chronological sequence,
such additional matters as the court may have
directed him/her to incorporate, and shall
thereupon submit the redrafted record for
approval, upon notice to the appellee, in like
matter as the original draft. (Id.).
A record on appeal does not have to be set for
hearing in the trial court by the appellant, as it is
deemed submitted for approval upon its filing and
the rule merely requires the adverse party to file
any objection thereto within five (5) days.
Joint Record on Appeal
Can be applied when both parties are appellants.
(Rule 41, Sec. 8)
Perfection of Appeal; Effect Thereof
Upon the timely filing of a notice of appeal and the
payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to
the appellant. (Rule 41, Sec. 9)
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of
the appeals filed in due time and the expiration of
the time to appeal of the other parties. (Id.).
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in
due time and the expiration of the time to appeal
of the other parties. (Id.).
In either case, prior to the transmittal of the original
record or the record on appeal, the court may
exercise residual powers – to issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending
appeal in accordance with Section 2 of Rule 39,
and allow withdrawal of the appeal. (Id.).
Execution Pending Appeal
General Rule: A perfected appeal stays the
challenged judgment or final order; such judgment
or final order cannot yet be the subject of a motion
for execution (except in instances where execution
pending appeal is allowed). (Id.).
Exception: The law, the Rules, or the Court of
Appeals, provide otherwise. (Id.)
This is NOT applicable to civil cases under the
Rule on Summary Procedure which provides that
the decision of the RTC in civil cases governed by
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said Rule, including forcible entry and unlawful
detainer cases; shall be immediately executory
without prejudice to a further appeal that may be
taken therefrom. (Id., see also Sec. 25, Revised
Rules on Summary Procedure)
Rehabilitation proceedings are not bound by
procedural rules spelled out in the Rules of Court.
The Interim Rules of Procedure for Corporate
Rehabilitation, not the Rules of Court, was the
procedural
law
governing
rehabilitation
proceedings. To quote Rule 3, Section 5 of the
Interim Rules: “A petition for review or an appeal
therefrom shall not stay the execution of the order
unless restrained or enjoined by the appellate
court.” (Home Guaranty Corporation vs. La Savoie
Development Corporation, G.R. No. 168616,
2015)
Duty of the Clerk of Court of the Lower Court
upon Perfection of Appeal
Within thirty (30) days after perfection of all the
appeals in accordance with the preceding section,
it shall be the duty of the clerk of court of the lower
court:
1. To verify the correctness of the original record
or the record on appeal, as the case may be,
and to make a certification of its correctness;
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; and
4. To transmit the records to the appellate court.
(Sec. 10, Rule 41)
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. (Id.).
REMEDIAL LAW
Transcript
Upon perfection of the appeal, the clerk shall
immediately direct stenographers concerned to
attach to the record of the case:
1. 5 copies of the transcripts of the testimonial
evidence referred to in the record on appeal.
2. Transcription of such testimonial evidence.
3. An index containing the names of the
witnesses and the pages where their
testimonies could be found; and
4. List of exhibits and pages wherein they appear.
(Sec. 11, Rule 41)
Transmittal
The branch clerk of court of the RTC shall transmit
to the appellate court the original record or the
approved record on appeal:
1. Within 30 days from the perfection of the
appeal;
2. With proof of payment of the appellate court
docket and other lawful fees;
3. A certified true copy of the minutes of the
proceedings;
4. An order of approval;
5. A certificate of correctness;
6. Original documentary evidence; and
7. Original and three copies of the transcript.
(Sec. 12, Rule 41)
Dismissal of Appeal
PRIOR to the transmittal of the original record or
the record on the appeal to the appellate court, the
trial court may, motu proprio or on motion,
dismiss the appeal for having been taken out of
time OR for non-payment of the docket and other
lawful fees within the reglementary period. (Sec.
13, Rule 41)
Rule 41 does not allow a trial court to disallow an
appeal on grounds other than an appeal being
taken out of time or non-payment of docket and
other fees within reglementary period. Rule 41 is
an appeal as a matter of right, once it is perfected,
only the CA may disallow an appeal (Kho v.
Camacho, G.R. No. 82789, 1991)
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PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURT TO THE COURT OF APPEALS
(Rule 42)
How Appeal Taken Time for Filing
Requisites:
1. File a verified petition for review with the Court
of Appeals within 15 days from notice of the
decision or of the denial of Motion for
Reconsideration/Motion for New Trial;
 The Court of Appeals may grant an
additional period of 15 days within which to
file the petition for review. No further
extension shall be granted except for the
most compelling reason and in no case to
exceed 15 days.
2. Pay docket and lawful fees and deposit
P500.00 to the Clerk of Court of the Court of
Appeals;
3. Furnish the Regional Trial Court and adverse
party with a copy of the petition (Sec. 1, Rule
42).
RULE 41
RULE 42
Refers
to
regular
appeals from the RTC
exercising
original
jurisdiction
Governs appeals from
the decision of the
RTC in the exercise of
its
appellate
jurisdiction
(Case
originally filed with
MTC)
Covers questions of Appeals to the Court of
fact, law or both.
Appeals
from
the
Regional Trial Court
An appeal on pure under this rule MAY be
questions
of
law made on questions of
cannot be taken to the fact or of law or on
Court of Appeals and mixed questions of fact
such improper appeal and law
will
be
dismissed
pursuant to Section 2,
Rule 50 of the Rules of
Court.
Note: An appeal taken
to either the Supreme
Court or the Court of
Appeals by the wrong
or inappropriate mode
shall be dismissed. No
transfers of appeals
erroneously taken to
the Supreme Court or
to the Court of Appeals
to whichever of these
Tribunals
has
appropriate appellate
jurisdiction will be
allowed;
continued
ignorance or willful
disregard of the law on
appeals will not be
tolerated. (SC Circular
2-90, March 9, 1990)
Form and Contents
The Petition shall contain:
1. Full names of the parties, without impleading
the lower courts/judges thereof as petitioners
or respondents;
2. Specific material dates to show it was filed on
time;
3. A statement of the matters involved, the issues
raised, the specification or errors of fact or law,
or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal;
4. Clearly legible duplicate originals or true copies
of judgments of both lower courts, certified
correct by the RTC Clerk of Court; and
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5. Certificate of non-forum shopping. (Sec. 2,
Rule 42)
The lower courts or judges that rendered the
judgment or final order complained of should not
be impleaded as parties. The same prohibition is
now provided in petitions for review on certiorari
under Rule 45, since these are petitions for appeal
and NOT original actions. (Sec. 2(a), Rule 42).
Effect of Failure to Comply With Requirements
The failure of the petitioner to comply with any of
the following requirements shall be sufficient
ground for the dismissal thereof:
a. Payment of the docket and other lawful fees.
b. Deposit for costs.
Note: Before the Court of Appeals may grant
the 15-day extension to file a petition for review,
Sec. 1, Rule 42 of the Rules of Court requires
the payment of the full amount of the docket
and other lawful fees and the deposit of the
necessary amount for costs before the
expiration of the reglementary period. (Heirs of
Esplana vs. CA, G.R. No. 155758, 2008)
c. Proof of service of the petition;
Note: The service of judgment serves as the
reckoning point to determine whether a
decision had been appealed within the
reglementary period or has already become
final. (Mindanao Terminal and Brokerage vs.
CA, G.R. No. 163286, 2012);
In Teh vs People, the Court of Appeals
correctly dismissed the petition for being
insufficient in form, not being accompanied by
duplicate original or certified true copies of the
documents and material parts of the record that
would support the allegations. Moreover, there
was no written explanation why service of the
petition was not done personally. (Teh vs.
People, G.R. No. 141180, 2005); and
d. Contents of and the documents, which should
accompany the petition. (Rule 42, Sec. 3)
Note: It is petitioner who knows best what
pleadings or material portions of the record of
the case would support the allegations in the
petition. Petitioner’s discretion in choosing the
documents to be attached to the petition is,
however, not unbridled. The CA has the duty to
check the exercise of this discretion, to see to
it that the submission of supporting documents
is not merely perfunctory.
REMEDIAL LAW
The practical aspect of this duty is to enable the
CA to determine at the earliest possible time
the existence of prima facie merit in the petition.
Moreover, Rule 42, Sec. 3 provides that if
petitioner fails to comply with the submission of
"documents, which should accompany the
petition," it "shall be sufficient ground for the
dismissal thereof." (Canton vs. City of Cebu,
G.R. No. 152898, 2007)
Note: In Quintin Lee vs. CA, the Court of
Appeals correctly dismissed petitioner's appeal
not only because he purportedly employed the
wrong mode of appeal. It likewise found that
petitioner failed to comply with the
requirements of (Rule 42, Sec. 2[d]).
In his petition before the appellate court,
petitioner attached only plain machine copies
of the certified photocopies of the assailed
decisions of the lower courts. Neither did he
submit the pleadings and other material
portions of the record to support his allegations.
(Quintin Lee vs. CA, G.R. No. 165918, 2008)
Extension of Period to File Petition for Review
General Rule: the CA may allow only 1 extension
of 15 days to file the petition for review after docket
fees are paid and if the motion for extension of time
is filed within the 15-day reglementary period.
Exception: for the most compelling reasons, the
CA may allow another extension not to exceed 15
days
Action on the Petition
The Court of Appeals may:
A. Require the respondent to comment, not file a
motion to dismiss, within 10 days from notice,
or
B. Dismiss the petition if it finds it to be:
a. Patently without merit;
b. Prosecuted manifestly for delay; or
c. Questions raised are too insubstantial to
require consideration. (Sec. 4, Rule 42)
Contents of Comment
Requisites of the comment of the respondent:
1. File in 7 legible copies, accompanied by
certified true copies of material portions of
records referred to;
2. State whether or not he/she accepts the
statement of matters involved in the petition;
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3. Point out insufficiencies/inaccuracies as he/she
believes exist in petitioner’s statement of
matters involved but without repetition; and
4. State reasons why petition should not be given
due course.
A copy of the comment shall be served on the
petitioner. (Sec. 5, Rule 42)
Due Course
If the Court of Appeals finds prima facie that the
RTC committed an error of fact or law that will
warrant a reversal or modification of the decision,
it may give due course to the petition. (Sec. 6, Rule
42)
REMEDIAL LAW
Perfection of Appeal; Effect thereof
The appeal is deemed perfected as to the
petitioner upon the timely:
1. Filing of the petition for review; and
2. Payment of docket and lawful fees. (Sec. 8,
Rule 42)
The RTC loses jurisdiction over the case upon:
a. The perfection of the appeals; and
b. The expiration of the time to appeal of the
other parties.
Petition for review is not a matter of right but
discretionary on the Court of Appeals. It may
only give due course to the petition if it shows on
its face that the lower court has committed an error
of fact and/or law that will warrant reversal or
modification of the decision or judgment sought to
be reviewed.
However, before the Court of Appeals gives
due course to the petition, the RTC may still
exercise residual powers:
a. Issue orders for the protection and preservation
of the rights of the parties, which do not involve
any matter litigated by the appeal;
b. Approve compromises;
c. Permit appeals of indigent litigants;
d. Order execution pending appeal in accordance
with Sec. 2 of Rule 39; and
e. Allow withdrawal of the appeal. (Id.)
Elevation of Record
Whenever the Court of Appeals deems it
necessary, it may require the RTC to elevate the
original records of the case within 15 days. (Sec.
7, Rule 42)
Rule on Perfected Appeal
General Rule: A perfected appeal stays the
challenged judgment or final order.
Exception: If the Court of Appeals, the law, or the
Rules provide otherwise.
Records remain with the trial court because it MAY
still issue a writ of execution pending appeal and
also because in some cases (e.g., ejectment and
those of Summary Procedure), the judgments are
immediately executory.
This is NOT applicable to civil cases under the
Rule on Summary Procedure, which provides that
the decision of the RTC in civil cases governed by
said Rule, including forcible entry and unlawful
detainer cases. It shall be immediately executory
without prejudice to a further appeal that may be
taken therefrom.
A REJOINDER (to the reply) is no longer
required under AM No. 99-2-04-SC.
Upon the Filing of the Reply, the Court Shall
Resolve Either to:
A. Give due course to the petition; and
a. Consider the case submitted for decision
based on the pleadings; or
b. Require the parties to submit their
respective memoranda; or
B. Deny or dismiss the petition.
Submission for Decision
If the petition is given due course, the Court of
Appeals (CA) may:
a. Set the case for oral argument; and/or
b. Require the parties to submit memoranda
within a period of 15 days from notice. (Sec. 9,
Rule 42)
No new issues may be raised by a party in the
Memorandum.
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Issues raised by a party in previous pleadings but
not included in the Memorandum shall be
deemed waived or abandoned.
Being a summation of the parties’ previous
pleadings, the Memoranda alone may be
considered by the CA in deciding or resolving the
petition.
The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum
required by these Rules or by the CA itself.
PETITION FOR REVIEW ON CERTIORARI
(APPEAL BY CERTIORARI) TO THE SUPREME
COURT (Rule 45)
Please refer to the subsequent section for the
discussions on Rule 45.
j. Appeal From Judgments And Final Orders
Of The Court Of Appeals
Appeal by Certiorari under Rule 45
A party desiring to appeal by certiorari from a
judgment, final order or resolution of the following
courts may file with the Supreme Court a verified
petition for review on certiorari:
a. Court of Appeals;
b. Sandiganbayan;
c. Regional Trial Court;
d. Court of Tax Appeals (en banc); or
e. Other courts, whenever authorized by law
(Sec. 1, Rule 45)
The petition may include an application for a writ
of preliminary injunction or other provisional
remedies and shall raise only questions of law
which must be distinctly set forth. (Id.).
The petitioner may seek the same provisional
remedies by verified motion filed in the same
action or proceeding at any time during its
pendency. (As amended by A.M. No. 07-7-12 SC,
Dec. 12, 2007)
raises only questions of law, the appeal must
be taken to the Supreme Court on a petition for
review on certiorari under Rule 45;
 All appeals from judgments rendered by the
RTC in the exercise of its appellate
jurisdiction, regardless of whether the
appellant raises questions of fact, questions of
law, or mixed questions of fact and law, shall
be brought to the Court of Appeals by filing a
petition for review under Rule 42. (Quezon City
v. ABS-CBN Broadcasting Corp., G.R. No.
166408, 2008)
Note: In all cases decided by the RTC in the
exercise of its original jurisdiction, appeal may be
made to the Court of Appeals by mere notice of
appeal where the appellant raises questions of fact
or mixed questions of fact and law (Id.)
Certiorari as a Mode of Appeal (Rule 45) v.
Certiorari as an Original Special Civil Action
(Rule 65)
APPEAL BY
CERTIORARI
(RULE 45)
CERTIORARI AS AN
ORIGINAL ACTION
(RULE 65)
Petition based only on
questions of law which
the appellant desires
the appellate court to
resolve.
Petition raises the
issue as to whether the
lower court acted with
grave
abuse
of
discretion amounting
to lack or excess of
jurisdiction.
Involves review of the May
be
directed
judgment, award or against
an
final order on the interlocutory order of
merits.
the court prior to
appeal
from
the
judgment or where
there is no appeal or
any other plain, speedy
or adequate remedy.
Mode of Appeal Involving Pure Questions of
Law in Cases where RTC Exercises Original vs.
Appellate Jurisdiction
 In all cases decided by the RTC in the exercise
of its original jurisdiction where the appellant
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APPEAL BY
CERTIORARI
(RULE 45)
CERTIORARI AS AN
ORIGINAL ACTION
(RULE 65)
Must be made within May be filed not later
the
reglementary than 60 days from
period for appeal.
notice of the judgment,
order or resolution
sought to be assailed,
or 60 days from receipt
of denial of a motion for
reconsideration.
Note that, as a general
rule, before a party can
file a petition for
certiorari under Rule
65, he/she must first
file a motion for
reconsideration
with
the lower court.
Stays the judgment, Does not stay the
award
or
order challenged proceeding
appealed from
unless a writ of
preliminary injunction
or
a
temporary
restraining order shall
have been issued by
the higher court.
The petitioner and
respondent are the
original parties to the
action, and the lower
court or quasi-judicial
agency is not to be
impleaded.
The parties are the
aggrieved
party
(petitioner) against the
lower court or quasijudicial agency (public
respondent) and the
prevailing party in the
lower court (private
respondent).
The prior filing of a
motion
for
reconsideration is not
required.
A
motion
for
reconsideration is, as a
general
rule,
a
condition precedent.
The purpose is to give
the lower court an
opportunity to correct
itself.
APPEAL BY
CERTIORARI
(RULE 45)
CERTIORARI AS AN
ORIGINAL ACTION
(RULE 65)
The appellate court is
in the exercise of its
appellate jurisdiction
and power of review.
The
higher
court
exercises
original
jurisdiction under its
power of control and
supervision over the
It is a continuation of proceeding of lower
the proceedings in the courts.
lower court.
It is an original action.
Treating Rule 45 Petitions as Rule 65 Petitions,
and Vice-versa
The Supreme Court, in accordance with the liberal
spirit pervading the Rules of Court and in the
interest of justice, may decide to treat a petition for
certiorari as having been filed under Rule 45.
(Delsan v. CA, G.R. 112288, 1997).
The Supreme Court has, on appropriate
occasions, treated a petition for certiorari as a
petition for review on certiorari, particularly when:
i. The petition for certiorari was filed within the
reglementary period to file a petition for review
on certiorari;
ii. The petition avers errors of judgment; and
iii. When there is sufficient reason to justify the
relaxation of the rules. (Navarez v. Abrogar III,
G.R. No. 191641, 2015).
Likewise, the Supreme Court exercised liberality
and considered, recognized a petition for certiorari
(Rule 65) as an appeal raising questions of law
(Rule 45) based on the following exceptions:
a. When public welfare and the advancement of
public policy dictates;
b. When the broader interest of justice so
requires;
c. When the writs issued are null and void; or
d. When the questioned order amounts to an
oppressive exercise of judicial authority.
(Spouses Godinez v. Spouses Norman, GR
No. 225449, 2020)
However, the Supreme Court does not tolerate the
practice of categorizing a petition to be “both under
Rule 65 and Rule 45, Rules of Court,” as the
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petition cannot be subsumed simultaneously
under Rule 45 and Rule 65, and neither may
petitioners delegate upon the court the task of
determining under which rule the petition should
fall. Wrong or inappropriate mode of appeal, merits
an outright dismissal. (Ybaňez v. CA, G.R. No.
117499, 1996)
When Rule 65 Petition is Available
A special civil action for certiorari under Rule 65
lies only when there is no appeal or any plain,
speedy and adequate remedy in the ordinary
course of law. Thus, certiorari cannot be allowed
when a party to a case fails to appeal a judgment
despite the availability of that remedy. Certiorari is
not a substitute for a lost appeal. (Indoyon vs. CA,
G.R. No. 193706, 2013) (N.B.: In this case, the
Petition for Certiorari under Rule 65 was filed 35
days after notice of resolution, by which time
petitioner had therefore lost his appeal under Rule
45.)
The remedies of appeal and certiorari are
mutually exclusive and not alternative or
successive. Although it is true that the SC may
treat a petition for certiorari (under Rule 65) as
having been filed under Rule 45 to serve the
higher interest of justice, it cannot be availed of
when the petition is filed well beyond the
reglementary period for filing a petition for review
(under Rule 45) and without offering any reason
therefor. (Banco Filipino v. CA, G.R. No. 132703,
2000; Sandoval v. Calipan G.R. No. 200727,
2013)
To be sure, the distinctions between Rules 45 and
65 are far and wide. However, the most apparent
is that errors of jurisdiction are best reviewed in a
special civil action for certiorari under Rule 65,
while errors of judgment can only be corrected by
appeal in a petition for review under Rule 45. This
Court, however, in accordance with the liberal
spirit, which pervades the Rules of Court, and in
the interest of justice may treat a petition for
certiorari as having been filed under Rule 45, more
so if the same was filed within the reglementary
period for filing a petition for review. (Nuñez v.
GSIS Family Bank, G.R. No. 163988, 2005)
REMEDIAL LAW
Questions of Law in Rule 45 Petition;
Exceptions
General Rule: Only QUESTIONS OF LAW may
be raised in a petition for review under Rule 45 of
the Rules of Court. (Sec. 1, Rule 45)
Exceptions: QUESTIONS OF LAW, FACT, or
BOTH may be determined, in the following
instances:
A. Appeal from CA, CTA en banc, and
Sandiganbayan to SC
B. Exceptions under the SC Circulars:
a. Appeals from a Petition for the Writ of
Habeas Data cases;
b. Appeals from a Petition for the Writ of
Amparo cases; or
c. Appeals from a Petition for the Writ of
Kalikasan cases.
C. Exceptions Under Jurisprudence
a. When the factual findings of the Court of
Appeals and the trial court are contradictory;
b. When the conclusion is a finding grounded
entirely on speculation, surmises, or
conjectures;
c. When the inference made by the Court of
Appeals from its findings of fact is manifestly
mistaken, absurd, or impossible;
d. When there is a grave abuse of discretion in
the appreciation of facts;
e. When the Appellate Court, in making its
findings, went beyond the issues of the case
and such findings are contrary to the
admissions of both appellant and appellee;
f. When the judgment of the Court of Appeals
is premised on a misapprehension of
facts;
g. When the Court of Appeals failed to notice
certain relevant facts which, if properly
considered, would justify a different
conclusion;
h. When the findings of fact are themselves
conflicting;
i. When the findings of fact are conclusions
without citation of the specific evidence on
which they are based; and
j. When the findings of fact of the Court of
Appeals are premised on the absence of
evidence but such findings are contradicted
by the evidence on record. (Local Superior
vs. Jody King, G.R. No. 141715, 2005)
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Basic Procedural Standards Under Rule 45
A petition under Rule 45 must satisfy the following:
1. That the petition does not only exclusively raise
questions of law, but also that it distinctly sets
forth those legal issues (Sec. 1, Rule 45);
2. That it be filed within 15 days of notice of the
adverse ruling that impels it (Sec. 2, Rule 45);
3. That docket and other lawful fees are paid
(Secs 3 & 5, Rule 45);
4. Tat proper service is made (Sec. 5(1), Rule 45);
5. That all matters that Section 4 specifies are
indicated, stated, or otherwise contained in it
(Secs. 4 & 5(1), Rule 45);
6. That it is manifestly meritorious (Sec. 5(2), Rule
45);
7. That it is not prosecuted manifestly for delay;
and
8. That the questions raised in it are of such
substance as to warrant consideration. (Kumar
v. People, G.R. No. 247661, 2020)
Time for Filing; Exceptions; Extension
General Rule: The petition shall be filed within 15
days from the notice of the judgment appealed
from, or of the denial of the petitioner’s motion for
new trial or reconsideration filed in due time after
notice of the judgment. (Sec. 2, Rule 45)
Exceptions:
a. Writ of Amparo – 5 working days
b. Writ of Habeas Data – 5 working days
Within the fifteen (15) day period, the petitioner
may, for good cause, file a motion for
extension of time to file his/her petition for review
on certiorari. The petitioner must submit the
requisite proof of service of such motion on the
respondents, pay the docket and other lawful fees
in full, as well as deposit the costs of suit.
The Supreme Court may, for justifiable reasons,
grant an extension of 30 days within which to file
the petition, provided the following requisites
concur:
1. A motion duly filed and served (within the
original 15-day period); and
2. Full payment of the docket and other lawful
fees and the deposit for costs (within the
original 15-day period). (Sec. 2, Rule 45)
REMEDIAL LAW
Docket and Other Lawful Fees; Proof of
Service of the Petition
Unless he/she has theretofore done so, the
petitioner shall pay the corresponding docket and
other lawful fees to the clerk of court of the
Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of the
petition. (Sec. 3, Rule 45)
The phrase “unless he has theretofore done so”
refers to the situation in Sec. 2, Rule 45, wherein
a motion for extension of time to file the petition for
review was filed, in which case the petitioner had
already paid the docket and other lawful fees and
made the deposit for costs as requisites therefore.
Although a copy of the petition is served upon the
lower court concerned, it is only for the purpose of
giving notice that its judgment should not be
entered since it is not yet executory because of the
pending petition for review thereof. The lower
court does not become a party to the case since
Rule 45 provides a mode of appeal. (Sec. 4(a),
Rule 45)
Nevertheless, proof of service of a copy thereof on
the lower court concerned AND on the adverse
party shall be submitted together with the petition.
(Id.).
Contents of petition
The petition shall be filed in 18 copies with the
original intended for the court being indicated as
such by the petitioner. The verified petition shall
contain:
1. Full names of the appealing party as the
petitioner and the adverse party as respondent,
without impleading the lower courts/judges
thereof either as petitioners or respondents.
2. Material dates showing:
i. When notice of the judgment or final order
or resolution subject thereof was received.
ii. When a motion for new trial or
reconsideration, if any, was filed; and
iii. When notice of the denial thereof was
received.
3. A statement of the matters involved and the
reasons or arguments relied on for the
allowance of the petition.
4. Clearly legible duplicate original, or a certified
true copy of the judgment or final order or
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resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of
the record as would support the petition.
5. Certificate of non-forum shopping. (Sec. 4,
Rule 45)
Rule 45, Section 4 of the Rules of Court indeed
requires the attachment to the petition for review
on certiorari “such material portions of the record
as would support the petition.” However, such a
requirement was not meant to be an ironclad rule
such that the failure to follow the same would merit
the outright dismissal of the petition. Dismissal is
discretionary on the appellate court. (F.A.T. Kee
Computer Systems, Inc. v. Online Networks
International, Inc., G.R. No. 171238, 2011)
In accordance with Section 7 of Rule 45, “the
Supreme Court may require or allow the filing of
such pleadings, briefs, memoranda or documents
as it may deem necessary within such periods and
under such conditions as it may consider
appropriate.” More importantly, Section 8 of Rule
45 declares that “if the petition is given due course,
the Supreme Court may require the elevation of
the complete record of the case or specified parts
thereof within fifteen (15) days from notice.” (Id.).
Dismissal or Denial of Petition
The failure of the petitioner to comply with any of
the following requirements shall be sufficient
ground for the dismissal thereof:
a. Payment of the docket and other lawful fees.
b. Deposit for costs.
c. Proof of service of the petition; and
d. Contents of and the documents which should
accompany the petition. (Sec. 5, Rule 45)
The Supreme Court may, on its own initiative,
deny the petition on the following grounds:
a. The appeal is without merit.
b. It is prosecuted manifestly for delay; or
c. The questions raised therein are too
unsubstantial to require consideration. (Id.).
Review discretionary
A review is not a matter of right, but of sound
judicial discretion and will be granted only when
there are special and important reasons thereof.
(Sec. 6, Rule 45)
REMEDIAL LAW
The following, while neither controlling nor fully
measuring the court’s discretion, indicate the
character of the reasons which will be considered:
a. When the court a quo (the court “from which”)
has decided a question of substance, not
theretofore determined by the Supreme Court,
or has decided it in a way probably not in
accord with law or with the applicable decision
of the Supreme Court; or
b. When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervision. (Id.).
Pleadings and Documents That May be
Required; Sanctions
For the purposes of determining whether the
petition should be dismissed or denied pursuant to
Section 5 of this rule, or where the petition is given
due course under Section 8 hereof, the Supreme
Court may:
A. Require or allow the filing of pleadings, briefs,
memoranda or documents as it may deem
necessary within such periods and under such
conditions as it may consider appropriate.
B. Impose sanctions in the following cases:
a. Non-filing of such pleadings or documents.
b. Unauthorized filing of such pleadings or
documents; or
c. Non-compliance with the conditions
therefor. (Sec. 7, Rule 45)
Due course; Elevation of Records
If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or parts thereof within 15 days
from notice. (Rule 45, Sec. 8)
Rule Applicable to Both Civil and Criminal
Cases
General Rule: The mode of appeal prescribed in
this Rule shall be applicable to both civil and
criminal cases.
Exception: It is not applicable to criminal cases
where the penalty imposed is:
a. Death.
b. Reclusion perpetua; or
c. Life imprisonment. (Sec. 9, Rule 45)
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Procedure in Criminal Cases Where the
Penalty is Death, Reclusion Perpetua, or Life
Imprisonment
 If RTC imposes the penalty of reclusion
perpetua or life imprisonment, or where a
lesser penalty is imposed but for offenses
committed on the same occasion or which
arose out of the same occurrence that gave rise
to the more serious offense for which death,
reclusion perpetua or life imprisonment is
imposed, appeal shall be by notice of appeal.
(Sec. 3(c), Rule 122)
 No notice of appeal is necessary if RTC
imposes death penalty; CA will automatically
review the judgment. (Sec. 3(e), Rule 122).
 If the Court of Appeals should affirm the penalty
of death, reclusion perpetua or life
imprisonment, it could then render judgment
imposing the corresponding penalty as the
circumstances so warrant, refrain from entering
the judgment and elevate the entire records of
the case to the SC for its final disposition.
(People v. Mateo, G.R. Nos. 147678-87, 2004)
k. Appeal From Judgments Or Final Orders
Of The Sandiganbayan
A party desiring to appeal from a judgment or final
order or resolution of the Sandiganbayan may file
with the Supreme Court a verified petition for
review on certiorari. (Sec. 1, Rule 45)
The proper remedy is an appeal under Rule 45
and not a petition for certiorari under Rule 65.
Section 7 of Presidential Decree No. 1606, as
amended by Republic Act No. 8249, provides that
“decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by a
petition for review on certiorari raising pure
questions of law in accordance with Rule 45 of the
Rules of Court." (People v. Espinosa, G.R. Nos.
153714-20, Aug. 15, 2003)
l. Appeal From Judgments Or Final Orders
Of The Court Of Tax Appeals (CTA)
A party adversely affected by a ruling, order or
decision of a Division of the CTA may file a motion
for reconsideration or new trial before the same
Division of the CTA within fifteen (15) days from
REMEDIAL LAW
notice thereof. (Sec. 11, R.A. 1125, as amended
by R.A. 9282).
A party adversely affected by a resolution of a
Division of the CTA on a motion for
reconsideration or new trial, may file a petition for
review with the CTA en banc. (Sec. 18, R.A.
1125, as amended by R.A. 9282).
A party adversely affected by a decision or ruling
of the CTA en banc may file with the Supreme
Court a verified petition for review on certiorari
pursuant to Rule 45 of the Rules of Court. (Sec.
19, R.A. 1125, as amended by R.A. 9282).
m. Review Of Final Judgments Or Final
Orders Of The Commission On Audit (Coa)
A judgment or final order or resolution of the
Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari
under Rule 65. (Sec. 2, Rule 64)
The petitioner must show that the COA has acted
without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction. (Nayong Pilipino Foundation, Inc. v.
Pulido Tan, G.R. No. 213200, 2017)
Period to File
The petition shall be filed within thirty (30) days
from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a
motion for new trial or reconsideration of said
judgment or final order or resolution, if allowed
under the procedural rules of the Commission
concerned, shall interrupt the period herein fixed.
(Sec. 3, Rule 64).
If the motion is denied, the aggrieved party may
file the
petition within the remaining period, but which
shall not be less than five (5) days in any event,
reckoned from notice of denial. (Id.).
The reglementary period includes the time taken
to file the motion for reconsideration and is only
interrupted once the motion is filed. If the motion is
denied, the party may file the petition only within
the period remaining from the notice of judgment.
(Law Firm of Laguesma Magsalin Consulta and
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Gastardo v. Commission on Audit, G.R. No.
185544, 2015)
n. Review Of Final Judgments Or Final
Orders Of The Commission On Elections
(COMELEC)
A judgment or final order or resolution of the
Commission on Elections may be brought by the
aggrieved party to the Supreme Court on certiorari
under Rule 65 in relation to Rule 64. (Sec. 2, Rule
64)
But this mode of appeal is only limited to cases
where the COMELEC exercises its adjudicatory or
quasi-judicial powers. (Querubin v. Commission
on Elections (En Banc), G.R. No. 218787, 2015)
In the exercise of its administrative functions, such
as when it acts as a procuring entity, then the
proper remedy is a Rule 65 petition with the RTC
pursuant to Sec. 58 of R.A. 9184 (Id.).
The period to file is governed by the same rules as
that with the COA, as discussed above. (Sec. 3,
Rule 64).
o. Review Of Final Judgments Or Final
Orders Of The Civil Service Commission
(CSC)
Appeals from awards, judgments, final orders or
resolutions of the Civil Service Commission shall
be taken to the Court of Appeals. (Secs. 1 and 3,
Rule 43).
p. Review Of Final Judgments Or Final
Orders Of The Ombudsman
The rulings of the Office of the Ombudsman may
either be in:
i. Administrative disciplinary cases; or
ii. Criminal cases (RIANO, 2019, p. 621).
Final Judgments or Orders of the Ombudsman
in Administrative Disciplinary Cases
The Court of Appeals, under Rule 43, has
jurisdiction over orders, directives and decisions of
the Office of the Ombudsman in administrative
cases. (Indoyon vs. CA, G.R. No. 193706, 2013).
REMEDIAL LAW
Sec. 27 of R.A. 6770, which provides that
administrative disciplinary cases decided by the
Ombudsman shall be directly appealed to the
Supreme Court in accordance with Rule 45, was
declared unconstitutional because it violated
Section 30 of Article VI of the Constitution when
the said provision increased the appellate
jurisdiction of the Supreme Court without the
latter’s concurrence and advice. (Fabian v.
Desierto, G.R. No. 129742, 1998)
Final Judgments or Orders of the Ombudsman
in Criminal Cases
Where the finding of the Ombudsman as to the
existence of probable cause is tainted with grave
abuse of discretion, amounting to lack or excess
of jurisdiction, an aggrieved party may file a
petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure. (Tirol, Jr. v. Del Rosario,
G.R. No. 135913, Nov. 4, 1999).
q. Review Of Final Judgments Or Final
Orders Of The National Labor Relations
Commission (NLRC)
Appeals from the NLRC shall be by petitions for
certiorari under Rule 65, to be filed with the
Court of Appeals in strict observance of the
doctrine on the hierarchy of courts. (St. Martin
Funeral Home v. National Labor Relations
Commission, G.R. No. 130866, 1998).
A special civil action for certiorari under Rule 65 is
not the same as an appeal. In an appeal, the
appellate court reviews errors of judgment. On the
other hand, a petition for certiorari under Rule 65
is not an appeal but a special civil action, where
the reviewing court has jurisdiction only over errors
of jurisdiction. Thus, the CA may review NLRC
decisions only when there is grave abuse of
discretion amounting to lack or excess of
jurisdiction. (Philippine National Bank v. Gregorio,
G.R. No. 194944, 2017)
Grave abuse of discretion may be ascribed to the
NLRC when:
1. Its findings and conclusions are not supported
by substantial evidence or in total disregard of
evidence material to, or even decisive of, the
controversy;
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2. It is necessary to prevent a substantial wrong
or to do substantial justice;
3. The findings of the NLRC contradict those of
the Labor Arbiter; and
4. It is necessary to arrive at a just decision of the
case. (Almagro v. Philippine Airlines, Inc., G.R.
No. 204803, Sep. 12, 2018).
r. Review Of Final Judgments Or Final
Orders Of Quasi-Judicial Agencies (Rule
43)
Quasi-judicial Body; Nature of Quasi-judicial
Function
A quasi-judicial agency or body is an organ of
government other than a court and other than a
legislature, which affects the rights of private
parties through either adjudication or rule-making.
A "quasi-judicial function" is a term which applies
to the action, discretion, etc. of public
administrative officers or bodies, who are required
to investigate facts, or ascertain the existence of
facts, hold hearings, and draw conclusions from
them, as a basis for their official action and to
exercise discretion of a judicial nature. (Monetary
Board v. Philippine Veterans Bank, G.R. No.
189571, 2015)
Quasi-judicial Agencies Covered by Rule 43
Under Section 1 and 3 of Rule 43, appeals from
awards, judgments, final orders, resolutions of or
authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions shall be
taken to the Court of Appeals. The list below is
not exclusive:
i.
Civil Service Commission (see Special
Rules and the end of this subsection)
ii. Central Board of Assessment Appeals.
iii. Securities and Exchange Commission.
iv. Office of the President (OP).
Note: The parties may file a motion for
reconsideration of the order, ruling, or
decision of the OP.
Since the OP is
essentially
an
administrative
agency
exercising quasi-judicial functions, its
decisions or resolutions may be appealed to
the CA through a petition for review under
Rule 43 of the Rules of Court. Rule 65 bars
its use as a mode of review when an appeal
or any other remedy at law is available
(subject to exceptions). (PBA vs. Gaite, G.R.
No. 170312, 2009)
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
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.
Dept. of Agrarian Reform under R.A. No.
6657.
xiv. Government Service Insurance System.
xv. Employees Compensation Commission.
xvi. Agricultural Invention Board.
xvii. Insurance Commission.
xviii. Philippine Atomic Energy Commission.
xix. Board of Investments.
xx. Construction
Industry
Arbitration
Commission; and
xxi. Voluntary arbitrators authorized by law.
Note: The decision or award of the voluntary
arbitrator or panel of arbitrators under the
Labor Code should likewise be appealable to
the Court of Appeals, in line with the
procedure outlined in Revised Administrative
Circular No. 1-95 (now embodied in Rule 43
of the 1997 Rules of Civil Procedure), just like
those of the quasi-judicial agencies, boards
and commissions enumerated therein, and
consistent with the original purpose to provide
a uniform procedure for the appellate review
of adjudications of all quasi-judicial entities.
(Samahan ng mga Manggagawa sa Hyatt vs.
Bacungan, G.R. No. 149050, 2009)
A motion for reconsideration must first be filed
by the party adversely affected by the ruling
of the Voluntary Abitrator or Panel of
Voluntary Arbitrator within 10 days from such
ruling. Only after the resolution of the motion
for reconsideration may the aggrieved party
appeal to the CA by filing the petition for
review under Rule 43 of the Rules of Court
within 15 days from notice pursuant to
Section 4 of Rule 43. (Guagua National
Colleges v. Court of Appeals, G.R. No.
188492, 2018)
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Preliminary Investigation Not a Quasi-judicial
Proceeding
A preliminary investigation is not a quasi-judicial
proceeding, and that the DOJ is not a quasijudicial agency exercising a quasi-judicial function
when it reviews the findings of a public prosecutor.
A quasi-judicial body is as an organ of the
government other than a court and other than a
legislature which affects the rights of private
parties through either adjudication or rule-making.
Such is not the case when a public prosecutor
conducts a preliminary investigation to determine
probable cause to file an information against a
person charged with a criminal offense, or when
the Secretary of Justice is reviewing the former's
order or resolutions (Santos v. Go, G.R. No.
156081, Oct. 19, 2005).
Court of Tax Appeals Not Covered by Rule 43
The CTA is on the level of the CA and thus not
covered by Rule 43. (Sec. 1, R.A. 1125, as
amended by R.A. 9282).
Modes of Appeal Under the Omnibus
Investments Code
The Omnibus Investment Code allows two
avenues of appeal from an action or decision of
the Board of Investments (BOI):
A. Elevate an appeal to the Office of the President
when an action pertains to:
a. The decisions of the BOI over controversies
concerning the implementation of the
relevant provisions of E.O. No. 226 that may
arise between registered enterprises or
investors and government agencies (see
Article 7, E.O. 226); or
b. An action of the BOI over applications for
registration under the investment priorities
plan (see Article 36, E.O. 226);
B. Elevate the matter directly to judicial tribunals
in actions pertaining to:
a. A party adversely affected by the issuance
of a license to do business in favor of an
alien or a foreign firm.
 The aggrieved party may file with the
proper RTC an action to cancel the said
license;
b. Direct appeal to the Supreme Court from
any order or decision of respondent BOI.
(see Article 82, E.O. 226) (National
REMEDIAL LAW
Federation of Hog Farmers, Inc. v. Board of
Investments, G.R. No. 205835, 2020)
Exhaustion of Administrative remedies;
Common Examples:
i. Office of the President (OP) - reviewable by
CA;
ii. Housing and Land Use Regulatory Board
(HLURB) – go to the OP first, then the OP
decision is reviewable by CA;
iii. National Labor Relations Commission (NLRC)
– only by Rule 65 to CA (labor case);
iv. Department of Agriculture Adjudication Board
(DARAB) – reviewable by CA;
v. Provincial Agrarian Reform Adjudicator
(PARAD) – go to the DARAB first, then to the
CA;
vi. RTC as commercial court – reviewable by the
CA;
vii. RTC as special agrarian court – reviewable by
the CA
Steps to Determine Coverage of Rule 43:
1. Check the listing in Sec. 1;
2. Determine if it is a decision rendered in the
exercise of a quasi-judicial function;
3. If so, follow the rules on appeals, i.e., only final
order/decisions are appealable;
4. If the agency is not listed in Sec. 1, look at the
charter or rules that govern such administrative
agency:
a. If the charter explicitly states that Rule 43
applies – file a Rule 43;
b. If the charter merely states that the
decisions are appealable – file a Rule 43.
Applicability to NLRC
General Rule: This Rule shall not apply to
judgments or final orders issued under the Labor
Code of the Philippines. (Rule 43, Sec. 2)
Exception: Judgments and final orders or
resolutions of the National Labor Relations
Commission are now reviewable, in the first
instance, by the Court of Appeals on certiorari
under Rule 65, but those of the Employees
Compensation Commission should be brought to
the CA through a petition for review under this
Rule. (St. Martin Funeral Homes v. NLRC, G.R.
No. 130866, 1998)
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Applicability to SEC
Special rules of procedure have also been
adopted for cases formerly within the jurisdiction
and adjudicatory processes of the SEC. (See
Regalado 10th ed. P. 573)
The Supreme Court issued A.M. No. 04-9-07-SC
as a clarification on the proper mode of appeal of
cases which were formerly under the jurisdiction of
the SEC, such as those cases involving corporate
rehabilitation. Now, there is no more need to file a
notice of appeal and record on appeal. An appeal
may now be perfected by filing a petition for review
within fifteen (15) days from notice of the decision
or final order of the trial court, directly to the CA
under Rule 43 of the Rules of Court. (China
Banking Corp. vs. Cebu Printing, G.R. No.
172880, 2010)
SPECIAL RULES When Appealing From Judgments and Final Orders of CSC, DOJ, NLRC, Office Of
The Ombudsman, and Secretary of Labor
Judgment or Final
Orders of:
REMEDY
CIVIL
SERVICE General Rule:
COMMISSION (CSC) Rule 43 with the CA
Note: The petitioner’s failure to state the date of receipt of the copy of the October
10, 2011 CSC decision is not fatal to her case since the dates are evident from
the records. Besides, we have ruled that the more important material date which
must be duly alleged in the petition is the date of receipt of the resolution of denial
of the motion for reconsideration, which the petitioner has duly complied with. As
to the failure to state the notary public’s office address, the omission was rectified
with the attachment in the motion for reconsideration of the verification and
certification of non-forum shopping and of the affidavit of service, with the notary
public’s office address. (Barra vs. CSC, G.R. No. 205250, 2013)
Exceptions:
Rule 65 with the CA
a. When public welfare and the advancement of public policy dictates;
b. When the broader interest of justice so requires;
c. When the writs issued are null and void; or
d. When the questioned order amounts to an oppressive exercise of judicial
authority.(DepEd vs. Cunanan, G.R. No. 169013, 2008)
DEPARTMENT OF a. If punishable by reclusion perpetua to death - Appeal to the OP, then file an
JUSTICE (DOJ)
appeal via Rule 43 with the CA
b. If less than reclusion perpetua to death - Rule 65 with the CA (Elma vs. Jacobi,
G.R. No. 155996, 2012)
Decisions,
orders,
resolutions of the
Secretary of Justice
on
preliminary
investigations
involving
an
offense/determination
of probable cause
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REMEDIAL LAW
OFFICE OF THE Administrative Cases
OMBUDSMAN
The decision shall be final, executory and unappealable where the respondent is:
a. Absolved of the charge; and
b. In case of conviction where the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine equivalent to one
month salary,.
In all other cases, the deci-,sion may be appealed to the CA in accordance with
Rule 43 within fifteen (15) days from receipt of the written Notice of the Decision
or Order denying the MR.
Note: An appeal shall not stop the decision from being executory. In case the
penalty is suspension or removal and the respondent wins such appeal, he shall
be considered as having been under preventive suspension and shall be paid the
salary and such other emoluments that he did not receive by reason of the
suspension or removal.
A decision of the Office of the Ombudsman in administrative cases shall be
executed as a matter of course. The Office of the Ombudsman shall ensure that
the decision shall be strictly enforced and properly implemented. The refusal or
failure by any officer, without just cause, to comply with an order of the Office of
the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground
for disciplinary action against said officer.
Criminal Cases
File a petition under Rule 65 with the SC.
Consolidated Administrative and Criminal Liability
Rule 43 with the CA (Administrative)
Rule 65 to the SC (Criminal)
NATIONAL LABOR File an MR with the NLRC, then file a Rule 65 petition with the CA. (St. Martin
RELATIONS
Funeral Homes v. NLRC, G.R. No. 130866, 1998)
COMMISSION
(NLRC)
VOLUNTARY
File an MR with the voluntary arbitrator within 10 days from the decision, then file
ARBITRATORS
a petition under Rule 43 within 15 days with the CA. (Guagua National Colleges
UNDER THE LABOR v. Court of Appeals, G.R. No. 188492, 2018)
CODE
SECRETARY
OF File an MR with the Secretary of Labor, then file a petition under Rule 65 with the
LABOR
(even if CA. (Philtranco v. Philtranco Workers Union, G.R. No. 180962 , 2014)
acting as voluntary
arbitrator)
RTC
as
a File a petition under Rule 43 with the CA. (China Banking Corp. vs. Cebu Printing,
Commercial Court
G.R. No. 172880, 2010)
(formerly SEC)
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Where to Appeal
An appeal under this Rule may be taken to the
Court of Appeals within the period and in the
manner herein provided, whether the appeal
involves questions of fact, of law, or mixed
questions of fact and law. (Rule 43, Sec. 3)
Period of Appeal
The period shall be within 15 days from:
1. Notice of the award, judgment, final order or
resolution; or
2. Date of last publication, if publication is
required by law for its effectivity; or
3. Denial of petitioner’s Motion for New Trial or
Motion for Reconsideration duly filed in
accordance with the governing law of the court
or agency a quo. Only one (1) Motion for
Reconsideration is shall be allowed. (Sec. 4,
Rule 43)
Note: Rule 43, Section 4 specifically allows
only one motion for reconsideration to an
appealing party; as such, the reckoning of the
fifteen (15)-day period to perfect the appeal
starts from the receipt of the resolution denying
the motion for reconsideration. (Yinlu Bicol
Mining Corporation v. Trans-Asia Oil and
Energy Development Corporation, 2015)
Upon proper motion and the payment of the full
amount of the docket fees 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.
(Sec. 4, Rule 43)
No further extension shall be granted except for
the most compelling reason and in no case to
exceed 15 days. (Id.).
How Appeal is Taken
Requisites:
1. File a verified petition for review:
i. With the Court of Appeals in seven 3 legible
copies (per Efficient Use of Paper Rule,
A.M. No. 11-9-4-SC);
ii. Attach proof of service of a copy thereof on
the adverse party and on the court or
agency a quo.
2. Pay to the Clerk of Court of the Court of
Appeals the docket and other lawful fees and
deposit P500.00 for costs.
i. Exemption from payment of docket and
lawful fees may be granted by the Court of
Appeals upon a verified motion setting forth
the valid grounds therefor;
ii. If the Court of Appeals denies the motion,
petitioner shall pay the docket and other
lawful fees within 15 days from notice of
denial. (Sec. 5, Rule 43)
REGIONAL TRIAL
COURT AS
APPELLATE COURT
(RULE 42)
QUASI-JUDICIAL
AGENCIES
(RULE 43)
Decision is stayed by Decision
is
an appeal
immediately executory,
not stayed by an
appeal unless TRO is
issued
Factual findings not Factual findings are
conclusive upon the conclusive upon the
Court of appeals if
Court of Appeals
supported
by
substantial evidence
Contents of the Petition
The petition for review shall contain:
1. Full names of the parties, without impleading
the court/agencies either as petitioners or
respondents.
2. Concise statement of the facts and issues
involved and the grounds relied upon for
review.
3. Clearly legible duplicate original or a certified
true copy of the award, judgment, final order or
resolution appealed from, together with:
4. Certified true copies of such material portions
of the record referred to therein.
5. Other supporting papers;
6. Certificate of non-forum shopping.
7. Material dates to show it was filed within the
period fixed therein. (Sec. 6, Rule 43)
Sec. 6 of Rule 43 does not require that all of the
supporting papers or annexes accompanying the
petition should be certified true copies or duplicate
originals. What is mandatory is to attach the
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clearly legible duplicate originals or certified true
copies of the judgment or final orders of the
lower
courts,
which
is/are
being
questioned/assailed. (Jaro v. CA, G.R. No.
127536, 2002)
Effect of Failure to Comply With Requirements
Failure of petitioner to comply with any of the
following requirements shall be sufficient ground
for the dismissal thereof:
a. Payment of the docket and other lawful fees;
b. Deposit for costs;
c. Proof of service of the petition; and
d. Contents of and the documents which should
accompany the petition. (Sec. 7, Rule 43)
Petitioner failed to comply with the requirement by
not impleading its creditors as respondents. Sec 7
of the same rule provides that failure to comply
with requirements shall be sufficient ground for the
dismissal thereof. (Viva Shipping Lines Inc., v.
Keppel Philippines Mining Inc., GR No. 177382,
2016)
Action on the Petition
The Court of Appeals may:
A. Require the respondent to file a comment on
the petition, not a motion to dismiss, within 10
days from notice; or
B. Dismiss the petition if it finds the petition to be:
a. Patently without merit.
b. Prosecuted manifestly for delay; or
c. The questions raised therein are too
unsubstantial to require consideration.
(Sec. 8, Rule 43)
Contents of a Comment
The following are the requisites of a comment of
the respondent:
1. Must be filed in 7 legible copies;
2. Accompanied by clearly legible certified true
copies of such material portions of the record
referred to therein together with the supporting
papers;
3. Must point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues;
4. Must state the reasons why the petition should
be denied or dismissed; and
5. Must be filed within 10 days from notice. (Sec.
9, Rule 43)
REMEDIAL LAW
A copy thereof shall be served on the petitioner
and proof of such service shall be filed with the
Court of Appeals. (Id.).
The appeal shall not stay the award, final order,
or resolution sought to be reviewed UNLESS the
Court of Appeals shall direct otherwise upon such
terms as it may deem just. (Sec. 12, Rule 43).
Due Course
If from the records the Court of Appeals finds
prima facie that the court or agency committed
errors of fact or law that would warrant a reversal
or modification of the decision sought to be
reviewed, it may give due course to the petition.
Otherwise, it shall dismiss the same.
The findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals.
(Sec. 10, Rule 43)
Transmittal of Record
Within 15 days from notice that the petition has
been given due course, the Court of Appeals may
require the court or agency concerned to transmit
the record of the proceeding under review.
The record to be transmitted may be abridged by
the agreement of all parties to the proceeding.
The Court of Appeals may require or permit the
subsequent correction of or addition to the record.
(Sec. 11, Rule 43)
Submission for Decision
If the petition is given due course, the Court of
Appeals may:
a. Set the case for oral argument; and/or
b. Require the parties to submit memoranda
within 15 days from notice. (Sec. 10, Rule 43)
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 43, Sec. 13)
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DISMISSAL,
REINSTATMENT,
AND
WITHDRAWAL OF APPEAL; OTHER MATTERS
Dismissal of Appeal
Sec. 1, Rule 50 lists 9 grounds wherein the CA
may, on its own motion or on that of the appellee,
dismiss an appeal. These are:
a. Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
b. Failure to file the notice of appeal or the record
on appeal within the period prescribed by these
Rules;
c. Failure of the appellant to pay the docket and
other lawful fees as provided in section 5, Rule
40 and section 4 of Rule 41(Bar Matter No. 803,
1998);
d. Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in Section 4 of Rule 44;
e. Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by these
Rules;
f. Absence of specific assignment of errors in the
appellant's brief, or of page references to the
record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
g. Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
h. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
i. The fact that the order or judgment appealed
from is not appealable.
In deciding to dismiss an appeal, the CA is bound
to exercise its sound discretion upon taking all the
pertinent circumstances into due consideration.
(People v. Diaz, G.R. No. 180677, 2013).
Also, a litigant’s failure to furnish his opponent with
a copy of his appeal brief does not suffice to
warrant the dismissal of an appeal. All that is
needed is for the court to order the litigant to
furnish opponent with a copy of brief. (Tiangco v.
Land Bank of the Philippines, G.R. No. 153998,
2010)
REMEDIAL LAW
The “Harmless Error Rule” In Appellate
Decisions
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or
order or in anything done or omitted by the trial
court or by any of the parties is ground for granting
a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any
error or defect which does not affect the
substantial rights of the parties. (Sec. 6, Rule 51).
General Rule: No error which does not affect the
jurisdiction over the subject matter or the validity
of the judgment appealed from or the proceedings
therein will be considered unless stated in the
assignment of errors, or closely related to or
dependent on an assigned error and properly
argued in the brief, save as the court may pass
upon plain errors and clerical errors. (Sec. 8, Rule
51)
Exceptions:
a. Those affecting jurisdiction over subject matter;
b. Evidently plain and clerical errors within
contemplation of law;
c. In order to serve ends of justice;
d. Matters raised in trial court having some
bearing on issue which parties failed to raise or
which lower court ignored;
e. Matters closely related to error assigned;
(Sps. Mario and Julia Campos v. Republic,
G.R. No. 184371, 2014)
Withdrawal of an Appeal
Filing a motion to withdraw appeal does not result
in automatic withdrawal of the appeal. An appeal
may be withdrawn as of right at any time before
the filing of the appellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of the
court. (Sec. 3, Rule 50; In Re: Resolution CA-G.R.
No. 94656 v. Mortel, 2016)
Entry of Judgments 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
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forthwith be entered by the clerk in the book of
entries of judgments.
The date when the judgment or final resolution
becomes executory shall be deemed as the date
of its entry.
The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by
the clerk, with a certificate that such judgment or
final resolution has become final and executory.
(Sec. 10, Rule 51)
Modes Of Attacking Final And Executory
Judgments
MODE
GROUND
Petition
for When the judgment has been
Relief under taken against the party through
Rule 38
FAME
Action
for Extrinsic
fraud,
lack
of
annulment of jurisdiction, denial of due
judgment
process
under Rule 47
Direct action,
as certiorari,
OR collateral
attack under
Rule 65
Certiorari – when there is grave
abuse of discretion amounting
to lack or excess of jurisdiction.
A challenged judgment, void
upon its face, can be the
subject of a collateral attack.
(Feria and Noche, Civil Procedure Annotated, Vol.
2, 2013 Ed., p. 109)
3. RELIEF FROM JUDGMENTS, ORDERS,
AND OTHER PROCEEDINGS (RULE 38)
Nature of a Petition for Relief
Relief from judgment is a remedy provided by law
to any person against whom a 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 the rules. (Cagayan
Economic Zone Authority v. Meridien Vista
Gaming Corp., G.R. No. 194962, Jan. 27, 2016)
Thus, if a Motion for New Trial was available at the
time that the Petition for Relief from Judgment was
filed, the petition was premature, i.e., there is a
more adequate remedy. (Gomez v. Montalban,
G.R. No. 174414, 2008)
A party who has filed a motion for new trial but
which was denied, CANNOT file a petition for
relief. These two remedies are EXCLUSIVE of
each other. The remedy is to appeal the judgment.
(Francisco v. Puno, G.R. No. L-55694, 1981)
a. Grounds For Availing Of The Remedy
A Petition for Relief may be filed when through
fraud, accident, mistake, or excusable
negligence (FAME):
a. A judgment or final order is entered into, or any
other proceeding is thereafter taken against the
petitioner; or
b. When the petitioner has been prevented from
taking an appeal. (Sec. 1 and 2, Rule 38).
Who May File
A motion for new trial or reconsideration and a
petition for relief from judgment are remedies
available only to parties in the proceedings where
the assailed judgment is rendered. In fact, it has
been held that a person who was never a party to
the case, or even summoned to appear therein,
cannot avail of a petition for relief from judgment.
(Alaban v. Court of Appeals, G.R. No. 156021,
Sep,23, 2005)
Where to File; Prayer
a. When the petition involves a relief from a
judgment, order, or proceeding – the petitioner
shall pray that the judgment, order, or
proceeding be set aside;
b. When the petition involves a relief from being
prevented from taking an appeal – the
petitioner shall pray that the appeal be given
due course. (RIANO, 2019, p. 633).
In both cases, the petition shall be filed in the
same court and in the same case. (Redena v.
CA, G.R. No. 146611, 2007)
Cases Where Petition for Relief is Applicable
A petition for relief may be taken from the order of
execution, inasmuch as Sec. 2, Rule 38, Revised
Rules, does not only refer to judgments, but also
to orders, or any other proceedings. (Cayetano
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v. Osmundo Ceguerra, G.R. No. L-18831, Jan. 30,
1965).
file R65 to question civil action under Rule
denial
65.
However, relief from judgment is NOT allowed in
summary proceedings. (Sec. 19, Revised Rules
on Summary Procedure)
Legal remedy
It is also not allowed in small claims cases (Sec.
16(d), Rules of Procedure for Small Claims Cases)
Equitable remedy
Motion need not be Petition
verified.
verified.
must
be
b. Time To File Petition
A petition for relief from judgment is not among the
remedies available in the Court of Appeals and the
Supreme Court. (Purcon, Jr. v. MRM Philippines,
Inc., G.R. No. 182718, Sep. 26, 2008).
The phrase “any court” that is referred to in Rule
38 are Metropolitan or Municipal or Regional Trial
Courts. (Sps. Mesina vs. Meer, G.R. No. 146845,
2002)
Motion for Reconsideration vs. Petition for
Relief
NEW TRIAL OR
RECONSIDERATION
(RULE 37)
PETITION FOR
RELIEF (RULE 38)
Available
before Available
after
judgment
becomes judgment
becomes
final and executory.
final and executory.
Applies to judgments Applies to judgments,
or final orders only.
final orders and other
proceedings.
Grounds:
 FAME; and
 Newly
discovered
evidence.
Grounds:
 FAME
Filed within the time to Filed within 60 days
appeal.
from knowledge of the
judgment and within 6
months from entry of
judgment.
If denied, the order of
denial
is
not
appealable.
The
remedy is to appeal
from the judgment or
If denied, the order of
denial
is
not
appealable.
The
remedy is a special
The petition shall be filed within sixty (60) days
after the petitioner learns of the judgment, final
order or proceeding, and NOT more than six (6)
months after such judgment or final order was
entered, or such proceeding was taken. (Sec. 3,
Rule 38)
Both periods are NOT extendible and never
interrupted. These two periods must CONCUR.
(Quelnan v. VHF Philippines, G.R. No. 138500,
2005)
Note: The alternative phrase “or such proceeding
was taken” in Sec. 3, Rule 38 could be taken to
mean other proceedings which are NOT to be
entered, such as a writ of EXECUTION and an
order approving a COMPROMISE AGREEMENT.
In such cases, the period must have to commence
from the date of occurrence because entry is
either unnecessary or inconsequential. (Feria and
Noche, Civil Procedure Annotated, Vol. 2, 2013
Ed., p. 120, citing Dirige v. Biranya, G.R. No. L22033, 1996)
Petition for relief from a judgment based on a
compromise must be filed not later than 6 months
from the date it was rendered (not date of entry),
since such judgment becomes final and executory
immediately upon approval of the compromise
agreement. (Republic v. Estenzo, G.R. No. L24656, 1968)
Note: A motion to dismiss the petition for relief
may be filed on the ground of lack of jurisdiction,
when the latter is filed beyond the reglementary
period. (Pacific Importing v. Tinio, G.R. No. L2634, 1949)
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REMEDIAL LAW
c. Contents Of Petition
The petition must contain:
1. The affidavits showing the grounds relied
upon;
2. The facts constituting the petitioner’s good
and substantial cause of action or defense
(i.e., affidavit of merit); and
3. A verification; (Sec. 3, Rule 38).
Note: A separate affidavit is NOT necessary if
such facts are alleged in the verified petition.
(Feria and Noche, 2013 Ed., p. 117, citing Fabar
Incorporated v. Rodelas, G.R. No. L-46394 1977,
and Samonte v. S.F. Naguiat, G.R. No. 165544,
2009)
Order to File Answer
If the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall issue
an order requiring the adverse parties to answer
the same within fifteen (15) days thereof. The
order shall be served in such manner as the court
may direct, together with copies
of the petition and the accompanying affidavits.
(Sec. 4, Rule 38)
Proceedings After the Answer is Filed
After the filing of the answer or the expiration of the
period to file the answer, the court shall hear the
petition.
Thereafter, the court may either:
a. Dismiss the petition if it finds that the
allegations thereof are not true; or
b. Set aside the judgment or final order or other
proceeding if it finds the allegations to be true.
The case shall then stand as if such judgment,
final order or other proceeding had never been
rendered, issued, or taken. The court shall
hear and determine the case as if a timely
motion for a new trial or reconsideration had
been granted by it. (Sec. 6, Rule 38)
IMPORTANT: An order GRANTING the petition
for relief is interlocutory hence not immediately
appealable. (Sec. 1(b), Rule 41).
An order DENYING the petition for relief is now
subject only to certiorari under Rule 65. (Id.).
Note: If the petition is insufficient, as for example,
no affidavit of merit is attached, the court may
dismiss the petition outright. (Omandam v.
Director of Lands, G.R. No. L-4301, 1954)
Procedure Where the Denial of an Appeal is Set
Aside
The lower court shall be required to give due
course to the appeal and to elevate the record of
the appealed case as if a timely and proper appeal
had been made. (Sec. 7, Rule 38)
Failure to file answer does not warrant declaration
of default.
4. ANNULMENT OF JUDMENTS AND FINAL
ORDERS AND RESOLUTIONS (RULE 47)
Preliminary Injunction Pending Proceedings
Because a final and executory judgment is the
subject of a petition for relief, the judgment may be
subject to execution. A person who files a petition
under Rule 38 may file a preliminary injunction to
preserve the rights of the parties upon filing of a
bond.
Annulment of Judgment
A remedy in law independent of the case where
the judgment sought to be annulled was rendered.
Consequently, an action for annulment of
judgment may be availed of even if the judgment
to be annulled had already been fully executed or
implemented. (Bulawan v. Aquende, G.R. No.
182819, 2011; Diona v. Balangue, G.R. No.
173559, 2013)
The bond is conditioned upon the payment to the
adverse party of all damages and costs that may
be awarded to such adverse party by reason of the
issuance of the preliminary injunction.
Such injunction shall not discharge any lien which
the adverse party may have acquired upon the
property of the petitioner. (Sec. 5, Rule 38)
Coverage
This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate
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remedies are no longer available through no fault
of the petitioner. (Sec. 1, Rule 47)
This Rule also covers actions to annul a judgment
or final order of a Municipal Trial Court which 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. (Sec.
10, Rule 47)
The purpose is to set aside a final and executory
judgment, so that there would be a renewal of
litigation.
This remedy is NOT available to decisions of
quasi-judicial bodies.
Rule 47 limits its
application to regional trial courts and
municipal trial courts. (Imperial v. Armes, G.R.
Nos. 178842 & 195509, 2017).
2. Lack of jurisdiction (Rule 47, Sec. 2)
Absolute lack of jurisdiction over the person of the
defending party OR over the subject matter of the
claim.
Note: 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. (RP vs.
Technological Advocates, G.R. No. 165333, 2010)
3. Denial of Due Process
Denial of due process is recognized by
jurisprudence as an additional ground, where
there is an unconstitutional deprivation of property
without due process, or a party has not had his day
in court (Intestate Estate of the Late Nimfa Sian v.
Philippine National Bank, G.R. No. 168882, 2007;
Sps. Benatiro vs. Heirs of Cuyos, G.R. No.
161220, 2008)
a. Grounds For Annulment
1. Extrinsic fraud (Rule 47, Section 2)
Extrinsic or collateral fraud connotes any
fraudulent scheme executed by a prevailing litigant
outside the trial of a case against the defeated
party, or his agents, attorneys or witnesses,
whereby said defeated party is prevented from
presenting fully and fairly his side of the case.
(Libudan vs. Gil, G.R. No. L-21163, 1972)
The petitioner should show that the ordinary
remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available
without fault on the part of the petitioner. A petition
for annulment that ignores or disregards any of the
safeguards cannot prosper. (Sibal v. Buquel, G.R.
No. 197825, Jan. 11, 2016). Thus, extrinsic fraud
will not be a valid ground if it was availed of, or
could have been availed of in a motion for new trial
or a petition for relief from judgment.
Note: The petition need not categorically state the
exact words “extrinsic fraud”; rather, the
allegations in the petition should be so crafted to
easily point out the ground on which it was based.
(Castigador vs. Nicolas, G.R. No. 184023, 2013)
Summary of Rules on Grounds:
 If ground is extrinsic fraud – availability of
MR/MNT/Petition for relief will be a bar to Rule
47
 If ground is lack of jurisdiction – availability of
an MR/MNT/Petition for relief will not be a bar
to a Rule 47
Where Filed
 CA – over decisions of the RTC; or
 RTC – over decisions of the MTC (Sec. 1 and
10, Rule 47).
b. Period To File Action
a. If based on EXTRINSIC FRAUD – the action
must be filed within four (4) years from its
discovery;
b. If based on LACK OF JURISDICTION – the
action does not prescribe since the judgment
is void. But note that laches or estoppel can
set in as an equitable bar to the action (Sec. 3,
Rule 47);
c. If based on DENIAL OF DUE PROCESS – the
action does not prescribe. Lack of due
process renders the judgment void. An action
to declare the nullity of a void judgment does
not prescribe. (Sps. Benatiro vs. Heirs of
Cuyos, G.R. No. 161220, 2008)
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Filing and Contents of Petition
The action shall be commenced by filing a verified
petition alleging therein with particularity:
a. The facts and the law relied upon for
annulment;
b. Those supporting the petitioner’s good and
substantial cause of action or defense, as the
case may be. (Sec. 4, Rule 47).
REMEDIAL LAW
Procedure
A petition for annulment of judgment filed in the
Court of Appeals shall observe the procedure in
ordinary civil actions. Should a trial be necessary,
the reception of the evidence may be referred to a
member of the Court or a Regional Trial Court
judge. (Rule 47, Sec. 6)
c. Effects Of Judgment Of Annulment
The petition shall be filed in 7 legible copies,
together with:
1. Sufficient copies corresponding to the number
of respondents.
2. Affidavits of witnesses or documents
supporting the cause of action; and
3. Certificate of non-forum shopping. (Id.)
A certified true copy of the judgment or final order
or resolution shall be attached to the original copy
of the petition intended for the court and indicated
as such by the petitioner. (Id.)
We have consistently held that a person need not
be party to the judgment sought to be annulled.
What is essential is that he can prove his
allegation that the judgment was obtained by the
use of fraud and collusion and that he would be
adversely affected thereby. (Bulawan v. Aquende,
G.R. No. 182819, 2011)
Material dates need to be stated to prove that the
petition was filed within 4 years from the discovery
of the fraud; fraud must be extrinsic (Ramos v.
Combong, Jr., G.R. No. 144273, 2005)
Submitted wrongly to the jurisdiction of the RTC
(should have been LBAA); once a party invokes
the jurisdiction of a court, that party cannot then
deny it and use it as bases for a Rule 47 (Sps.
Teaño v. Navotas, G.R. No. 205814, 2016)
Action by the Court
The court may:
a. Dismiss the petition outright, if it finds no
substantial merit in the petition, with specific
reasons for such dismissal; or
b. Give due course if the court finds prima facie
merit in the petition, in which case summons
shall be served on the respondent. (Rule 47,
Sec. 5)
A judgment of annulment shall set aside the
questioned judgment or final order or resolution
and render the same null and void, without
prejudice to the original action being re-filed in the
proper court.
However, 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. (Rule 47, Sec. 7)
Suspension of Prescriptive Period
The prescriptive period for the re-filing of the
aforesaid original action shall be deemed
suspended from the filing of such original action
until the finality of the judgment of annulment.
However, the prescriptive period shall not be
suspended where the extrinsic fraud is attributable
to the plaintiff in the original action. (Sec. 8, Rule
47)
Relief available
The judgment of annulment may include:
a. Award of damages;
b. Attorney’s fees; and
c. Other relief. (Sec. 9, Rule 47)
If the questioned judgment or final order or
resolution had already been executed, the court
may issue:
a. Orders of restitution or
b. Other relief as justice and equity may warrant
under the circumstances. Annulment of
Judgments or Final Orders of MTC. (Id.).
Remedies from a Rule 47
a. If petition is denied – file a Rule 45 petition to
SC (if questions of law are involved);
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b. If question of fact – no remedy left;
c. If petition was merely given due course (i.e., it
is only interlocutory) – file a Rule 65 petition to
the SC
5. COLLATERAL ATTACK OF JUDGMENTS
Collateral Attack of Judgments
A collateral attack upon a judgment has been
defined to mean any proceeding in which the
integrity of a judgment is challenged, except those
made in the action wherein the judgment is
rendered or by appeal, and except suits brought to
obtain decrees declaring judgments to be void ab
initio. (15 R.C.L., 838); (Alviar vs. Carlos, G.R. No.
L-45291, 1937)
REMEDIAL LAW
S. EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
1. DIFFERENCE BETWEEN FINAL
JUDGMENT FOR PURPOSES OF APPEAL;
FOR PURPOSES OF EXECUTION
Differences for Purposes of Appeal
General Rule: Final judgments dispose of,
adjudicate, or determine the rights of the parties
and leave nothing to be adjudicated upon. Only
final judgments can be the subject of an appeal.
Note: In the case of Sps. Benatiro, the CFI (RTC)'s
order being null and void, it may be assailed
anytime, 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. Consequently, the compromise
agreement and the Order approving it must be
declared null and void and set aside. (Sps.
Benatiro vs. Heirs of Cuyos, G.R. No. 161220,
2008)
Final judgment or Order
A final judgment or order is one that finally
disposes of a case, leaving nothing more to be
done by the Court in respect thereto, e.g., an
adjudication on the merits which, on the basis of
the evidence presented at the trial, declares
categorically what the rights and obligations of the
parties are and which party is in the right; or a
judgment or order that dismisses an action on the
ground, for instance, of res judicata or prescription.
Once rendered, the task of the Court is ended, as
far as deciding the controversy or determining the
rights and liabilities of the litigants is concerned.
Direct Attack vs. Collateral Attack
A DIRECT ATTACK against a judgment is made
through an action or proceeding the main object of
which is to annul set aside, or enjoin the
enforcement of such judgment, if not yet carried
into effect; or, if the property has been disposed of,
the aggrieved party may sue for recovery.
Nothing more remains to be done by the Court
except to await the parties' next move and
ultimately, of course, to cause the execution of the
judgment once it becomes "final" or, to use the
established and more distinctive term, "final and
executory." (Philippine Business Bank vs. Chua,
G.R. No. 178899, 2010)
A COLLATERAL ATTACK is made when, in
another action to obtain a different relief, an attack
on the judgment is made as an incident in said
action. This is proper only when the judgment, on
its face, is null and void, as where it is patent that
the court which rendered said judgment has no
jurisdiction. (Co vs. CA, G.R. No. 93687, 1991)
Differences for Purposes of Execution:
Execution of a final and executory judgment is a
matter of right. A judgment is final and executory
when the law/rules do not provide for an appeal or
the period to appeal has lapsed without an appeal
being taken.
Final Judgments vs. Final and Executory
Judgments
Judgments are “FINAL” in a sense that they
finally dispose of, adjudicate, or determine the
rights of the parties. But such judgments are not
yet final and executory pending the period of
appeal. During that period, execution of the
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judgment cannot be yet demanded by the winning
party as a matter of right.
Judgments become “FINAL AND EXECUTORY”
by operation of law. Finality of judgment becomes
a fact upon the lapse of the reglementary period to
appeal if no appeal is perfected. In such a
situation, the prevailing party is entitled to a writ of
execution, and issuance thereof is a ministerial
duty of the court. (Abrigo vs. Flores, G.R. No.
160786, 2013); (Feria and Noche, Civil Procedure
Annotated, 2013 ed., vol. 2, p.127)
Doctrine of Immutability of Judgments
A judgment that has acquired finality becomes
immutable and unalterable, and may no longer be
modified in any respect even if the modification is
meant to correct erroneous conclusions of fact or
law and whether it will be made by the court that
rendered it or by the highest court of the land.
The doctrine of immutability and inalterability of a
final judgment has a 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
courts exist.
Exceptions:
a. Correction of clerical errors;
b. Nunc pro tunc entries that cause no prejudice
to any party;
c. Void judgments; and
d. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable. (Apo Fruits and Hijo
Plantation vs. CA, G.R. No. 164195, 2009)
Note: A supervening event, to be sufficient to stay
or stop the execution, must alter or modify the
situation of the parties under the decision as to
render the execution inequitable, impossible, or
unfair. The supervening event cannot rest on
unproved or uncertain facts. (Abrigo vs. Flores,
G.R. No. 160786, 2013)
Doctrine of immutability of a final judgment may be
relaxed only to serve the ends of substantial
REMEDIAL LAW
justice in order to consider certain circumstances
like:
i. Matters of life, liberty, honor or property;
ii. Existence
of
special
or
compelling
circumstances;
iii. Merits of the case;
iv. Cause not being entirely attributable to the fault
or negligence of the party favored by the
suspension of the doctrine;
v. Lack of any showing that the review sought is
merely frivolous and dilatory;
vi. Other party will not be unjustly prejudiced by
the suspension. (Abrigo vs. Flores, G.R. No.
160786, 2013)
2. WHEN EXECUTION SHALL ISSUE
NO appeal may be taken from an order of
execution. A party desiring to assail an order of
execution may instead file an appropriate special
civil action under Rule 65 of the Rules of Court.
Requisites of a Writ of Execution
The writ must conform strictly to the decision or
judgment; it cannot vary the terms of the judgment
it seeks to enforce.
a. Execution As A Matter Of Right
When Execution is a Matter of Right
a. Upon judgment or order that disposes of the
action or proceeding;
b. Upon expiration of the period to appeal
therefrom and no appeal has been duly
perfected;
c. When appeal has been duly perfected and
resolved with finality. (Sec. 1, Rule 39)
Execution shall issue as a matter of right upon
motion. (Id.)
Judgments and Final Orders Which may be
Executed as a Matter of Right Even BEFORE
Expiration of Time to Appeal:
a. Judgment of lower court against defendant in
forcible entry and unlawful detainer (where the
defendant fails to post a supersedeas bond or
deposit the rentals with the court, or where the
appeal is from a decision of the regional trial
court against the defendant).
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b. Judgment in action for injunction, receivership,
accounting and support, unless otherwise
ordered by the court.
c. Award, judgment, final order, or resolution of
quasi-judicial bodies appealable to the Court of
Appeals. (Feria and Noche, Civil Procedure
Annotated, 2013 ed., vol. 2, p. 127)
Note: These are without need of advance notice
or service of a motion for execution on defeated
party.
Section 1 of Rule 39 of the Revised Rules of Court
does not prescribe that a copy of the motion for the
execution of a final and executory judgment be
served on the defeated party, like litigated motions
such as a motion to dismiss (section 3, Rule 16),
or motion for new trial (section 2, Rule 37), or a
motion for execution of judgment pending appeal
(section 2, Rule 39), in all of which instances a
written notice thereof is required to be served by
the movant on the adverse party in order to afford
the latter an opportunity to resist the application.
Once the judgment has become final and
executory, the prevailing party (judgment obligee)
may, by motion, ask for the issuance of a writ
execution of the judgment in the court of origin.
(Far Eastern Surety vs. Vda. De Hernandez, G.R.
No. L-30359, 1975)
The prevailing party can have it executed as a
matter of right, and the judgment debtor need not
be given advance notice of the application for
execution nor be afforded prior hearings thereon.
(De Mesa vs. CA, G.R. No. 109387)
Elementary is the rule that every motion must
contain the mandatory requirements of notice and
hearing and that there must be proof of service
thereof. The rule, however, is NOT ABSOLUTE.
There are motions that can be acted upon by the
court ex parte if these would not cause prejudice
to the other party. They are not strictly covered by
the rigid requirement of the rules on notice and
hearing of motions. A motion for execution is such
kind of motion. (Anama vs. CA, G.R. No. 187021,
2012)
The issuance of the writ of execution is the
ministerial duty of the court.
Thus, it is
compellable by MANDAMUS.
REMEDIAL LAW
Exceptions (i.e., when the court may refuse
execution):
a. Where the judgment turns out to be incomplete
or conditional;
b. Judgment is novated by the parties (e.g.,
compromise);
c. Change in the situation of the parties which
would render execution of judgment unjust;
d. Execution is enjoined (e.g., there is a
preliminary injunction);
e. Judgment has become dormant; or
f. Execution is unjust or impossible.
A compromise agreement, once approved by final
order of the court, has the force of res judicata
between the parties and should not be disturbed
except for vices of consent or forgery. Hence, a
decision on a compromise agreement is final and
executory and it has the force of law and is
conclusive between the parties. It transcends its
identity as a mere contract binding only upon the
parties thereto as it becomes a judgment that is
subject to execution in accordance with the Rules
of
Court.
(Sonley
v.
Anchor
Savings
Bank/Equicom Savings Bank, G.R. 205623, 2016)
However, a writ of execution should not vary the
terms of the compromise agreement. Otherwise, it
is void. In this case, it is void because the
Compromise Agreement only obliged the
petitioners to deposit the settlement amount in
escrow. There was nothing in the Compromise
Agreement that required the petitioners to ensure
the distribution of the settlement amount to each
claimant. (Chiquita Brands, Inc. v Omelio, GR No.
189102, 2017)
Grounds for Quashing a Writ of Execution
a. When the writ of execution varies the judgment;
b. When there has been a change in the situation
of the parties making the execution inequitable
or unjust;
c. When execution is sought to be enforced
against property exempt from execution;
d. When it appears that the controversy has never
been submitted to the judgment of the court;
e. When the terms of the judgment are not clear
enough and there remains room for
interpretation thereof;
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f. When it appears that the writ of execution has
been improvidently issued; or
g. When it appears that the writ of execution is
defective in substance, or is issued against the
wrong party or that the judgment debt has been
paid or otherwise satisfied, or the writ was
issued without authority.
You can also file a petition for certiorari under Rule
65 with prayer for TRO to restrain execution.
(Albano, Remedial Law Reviewer)
When Execution of Final and Executory
Judgments May be ENJOINED:
a. Upon filing of a petition for relief from judgment,
the court in which the petition is field may grant
preliminary injunction for the preservation of
the rights of the parties pending the
proceedings;
b. In an attack against a judgment which is void
for lack of jurisdiction or was obtained through
fraud, the court in which the action for certiorari,
injunction, or annulment is filed may grant
preliminary injunction; and
c. On equitable grounds. (Feria and Noche, Civil
Procedure Annotated, 2013 ed., vol. 2, p. 130)
General Rule: The dispositive portion of the
decision is the part that is subject of execution.
Exceptions:
a. Where there is ambiguity, the body of the
opinion may be referred to for purposes of
construing the judgment. (Mutual Security
Insurance Corporation v. Court of Appeals,
G.R. No. L-47018, 1987);
b. Where extensive and explicit discussion and
settlement of the issue is found in the body of
the decision. (Wilson Ong Ching Kian Chung,
et al v. Chinese National Cereals Oil and
Foodstuffs Import and Export Corp, et al. G.R.
No. 131502, June 8, 2000)
REMEDIAL LAW
Execution of a Judgment or Final Order
Pending Appeal
Requisites:
1. Motion for execution filed by the prevailing
party;
2. Notice of the motion to adverse party; and
3. Good reasons stated in a special order after
due hearing. (Rule 39, Sec. 2)
On motion, WITH NOTICE to the adverse party,
the prevailing party may apply for a writ of
execution of judgment or final order pending
appeal.
This must be done while trial court has
jurisdiction over the case and is in possession
of either the original record or record on
appeal. The court may, in its discretion, order
execution even before the expiration of the period
for appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed
with the appellate court.
Note: Awards for MORAL and EXEMPLARY
damages CANNOT be the subject of execution
pending appeal. (International School, Inc.
(Manila) v. CA, G.R. No. 131109, 1999)
Unlike the actual damages for which the
petitioners may clearly be held liable if they breach
a specific contract and the amounts of which are
fixed and certain, liabilities with respect to moral
and exemplary damages as well as the exact
amounts remain uncertain and indefinite pending
resolution by the Intermediate Appellate Court
(now CA) and eventually the Supreme
Court. (Radio Communications v. Lantin, G.R. No.
L-59311, 1985)
Note: Execution pending appeal is NOT
applicable in land registration proceedings.
b. Discretionary Execution
Types of Discretionary Execution
i. Execution of a judgment or a final order
pending appeal; and
ii. Execution of several, separate or partial
judgments
Good Reasons
Good
reasons
consist
of
compelling
circumstances justifying immediate execution lest
judgment becomes illusory, or the prevailing party,
after the lapse of time, be unable to enjoy it,
considering the tactics of the adverse party who
may have apparently no cause but to delay.
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(Archinet International, Inc. v. Beco Philippines,
Inc. G.R. No. 183753, 2009)
REMEDIAL LAW
Where the education of the person to be supported
would be unduly delayed. (Javier v. Lucero, et al.
G.R. No. L-6706, 1953)
through the filing of a supersedeas bond. Thus, the
penultimate sentence of Section 3 states: “[T]he
bond thus given may be proceeded against on
motion with notice to the surety.” Consequently, it
finds no application in election protest cases
where judgments invariably include orders which
are not capable of pecuniary estimation such as
the right to hold office and perform its
functions. (Navarosa vs. Comelec, G.R. No.
157957, 2003)
The insolvency of the judgment debtor. (Archinet
International, Inc. v. Becco Philippines, Inc. G.R.
No. 183753, 2009)
Judgments Not Stayed by Appeal
General Rule: Judgment is stayed by appeal. If so
stayed, it is not yet executory.
However, when there are several defendants and
the co-defendant is not insolvent, insolvency of a
defendant is not a good reason for execution.
(Philippine National Bank v. Puno G.R. No. 76018,
1989)
Exceptions: The following are instances when
judgments are immediately executory:
a. Injunction;
b. Receivership;
c. Accounting;
d. Support;
e. Other judgments declared to be immediately
executory as ordered by the trial court. (Sec. 4,
Rule 39)
Examples of GOOD REASONS:
That the appeal was being taken for the purpose
of delay. (Presbitero v. Roxas, G.R. 48121, 1941)
Execution of Several, Separate, or Partial
Judgments
Several separate or partial judgments MAY be
executed under the SAME terms and conditions as
execution of judgment or final order pending
appeal.
Note: An award for actual/compensatory
damages may be ordered executed pending
appeal, but not an award for moral or exemplary
damages.
Stay of Discretionary Execution
Discretionary execution is stayed upon approval
by the proper court of a sufficient supersedeas
bond filed by the party against whom it is directed,
conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be
finally sustained in whole or in part.
The supersedeas bond is filed by the petitioner
and approved by the court BEFORE the judgment
becomes final and executory. It guarantees the
satisfaction of the judgment in case of affirmation
on appeal. (Rule 38, Section 3)
These exceptions shall be enforceable after their
rendition and shall NOT be stayed by an appeal
taken therefrom UNLESS otherwise ordered by
the trial court.
On appeal therefrom, the appellate court in its
discretion MAY make an order suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
The stay of execution shall be upon such terms as
may be considered proper for the security or
protection of the rights of the adverse party. (Sec.
4, Rule 39)
Effect of Reversal of Executed Judgment
The trial court may, on motion, issue such orders
of restitution or reparation of damages as equity
and justice may warrant under the circumstances.
(Sec. 5, Rule 39)
Note: Section 3 (Stay of Discretionary Execution)
applies to ordinary civil actions where the interest
of the prevailing party is capable of pecuniary
estimation, and consequently, of protection,
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3. HOW JUDGMENT IS EXECUTED
a. Execution By Motion Or By Independent
Action
A final and executory judgment or order may be
executed:
a. On motion, within five (5) years from entry; or
b. By filing an independent action for revival of
judgment after five (5) years but before ten
(10) years from entry.
The revived judgment may be enforced:
a. By motion, within five (5) years from date of its
entry; or
b. By action, after the lapse of five (5) years,
before it is barred by the statute of limitations.
(Sec. 6, Rule 39)
Suspension of the Five Year Period for
Execution by Motion
There had been many instances where this Court
allowed execution by motion even after the lapse
of five years, upon meritorious grounds. These
exceptions have one common denominator, and
that is: the delay is caused or occasioned by
actions of the judgment debtor and/or is
incurred
for
his
benefit
or
advantage.||| (Republic v. Court of Appeals, G.R.
No. 91885, 1996)
Execution by Independent Action – REVIVAL
OF JUDGMENT
An action for revival of judgment is a new and
independent action. It is different and distinct from
the original judgment sought to be revived or
enforced. (Heirs of Miranda, Sr. v. Miranda, G.R.
No. 179638, 2013) Hence, the five (5) year period
to enforce the judgment by motion and the ten (10)
year period to enforce the judgment by action will
run from the date of finality of the revived judgment
and not of the original judgment.
The action for revival of judgment need not
necessarily be filed with the same court that
decided the case; it shall be filed in the RTC as
one incapable of pecuniary estimation.
REVIVAL OF
JUDGMENT
(SECTION 6)
REVIVAL OF
JUDGMENT
(SECTION 34)
An independent action A motion filed in court
assigned with a new and
not
an
docket
number, independent action.
requires the payment
of filing fees, and
assigned to a new
court.
Assumes that there is Assumes
that
a
no execution within the judgment is executed
first five years.
within the first five
years.
The party who files the
action is the judgment
creditor himself, or his
assignee,
or
successor-in-interest.
The party who files the
motion is not the
original
judgment
creditor but the highest
bidder in the public
auction sale.
Filed due to lapse of Filed because movant
the five-year period.
is deprived of the
property purchased.
Execution in Case of Death or Party
In case of death of the judgment obligee,
execution will issue upon the application of the
executor or administrator or successor-in-interest.
In case of death of judgment obligor:
BEFORE levy:
a. Execution will issue if the action is for the
recovery of real or personal property or any lien
thereon.
b. Execution will not issue if the action is for the
recovery of a sum of money. The judgment
obligee must file a claim against the estate of
the judgment obligor under Rule 86.
AFTER levy: Execution will continue even in
money judgment. The property may be sold for the
satisfaction of the judgment obligation, and the
officer making the sale shall account to the
corresponding executor or administrator for any
surplus in his hands.
(Sec. 7, Rule 39)
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b. Issuance And Contents Of A Writ Of
Execution
Writ of Execution
A judicial writ issued to an officer authorizing
him/her to execute the judgment of the court.
Requisites:
1. Must strictly conform to the decision or
judgment which gives it life;
2. Cannot vary the terms of judgment it seeks to
enforce.
The writ must:
1. Be issued in the name of the Republic of the
Philippines from the court, which granted the
motion;
2. State the name of the court, the case number
and title, the dispositive part of the subject
judgment or order; and
3. Require the sheriff or other proper officer to
enforce the writ according to its terms. (Sec. 8,
Rule 39)
The motion for execution and the writ of execution
must state specifically the amount of interest,
costs, damages, rents, or profits due as of the date
of issuance of the writ, aside from the principal
obligation. (Sec. 8(e), Rule 39)
Special sheriffs for the service of a writ of
execution are not authorized by law.
An appeal is the remedy for an order denying the
issuance of a writ of execution.
Issuance of the corresponding writ of execution
upon a final and executor judgment is a ministerial
duty of the court to execute which is compellable
by mandamus (Ebero v. Cañizares, G.R. No. L1397, 1947)
c. Execution Of Judgments For Money
A judgment for money is enforced by:
i. Immediate payment on demand;
ii. Satisfaction by levy;
iii. Garnishment of debts and credits. (Sec. 9, Rule
39)
REMEDIAL LAW
Immediate Payment on Demand
Judgment obligor shall pay in cash, certified bank
check payable to the judgment obligee, or any
other form of payment acceptable to the latter of
the full amount stated in the writ of execution.
(Sec. 9 (a), Rule 39).
Satisfaction by Levy
LEVY is an act by which an officer sets apart or
appropriates a part of the whole property of the
judgment debtor for purposes of the execution
sale. (Llenares v. Valdeavella, G.R. No. 21572,
1924)
Levy is a pre-requisite to the auction sale. In order
that an execution sale may be valid, there must be
a previous valid levy. A sale not preceded by a
valid levy is void and the purchaser acquires no
title. (Valenzuela v. De Aguila, G.R. No. L-1808383, 1963)
The officer shall levy upon properties of the
judgment obligor not otherwise exempt from
execution.
The judgment obligor exercises discretion to
choose which property to levy and if not exercised;
the officer shall levy first on personal property,
then on real property.
The sheriff shall sell only property sufficient to
satisfy the judgment and other lawful fees. (Sec.
9(b), Rule 39)
Mistaken Levy
Upon due application of the third person and after
summary hearing, the court may command that
the property be released from the mistaken levy
and restored to the rightful owner or possessor.
What said court can do in these instances,
however, is limited to a determination of whether
the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of
judgment, more specifically, if he has indeed taken
hold of property not belonging to the judgment
debtor. The court does not and cannot pass upon
the question of title to the property, with any
character of finality (Magdalena T. Villasi v.
Filomena Garcia, substituted by his heirs, namely,
Ermelinda H. Garcia, et al., G.R. No. 190106,
2014)
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Garnishment of Debts and Credits
GARNISHMENT is an act of appropriation by the
court when the property of a debtor is in the hands
of a third person. It is a species of attachment for
reaching any property or credits pertaining or
payable to a judgment debtor. (De la Victoria v.
Burgos, G.R. No. 111190, 1995)
Note: Garnishment is proper only when the
judgment to be enforced is one for payment of a
SUM OF MONEY. It cannot be employed to
implement a special judgment such as that
rendered in a special civil action for mandamus.
(National Home Mortgage vs. Alpajaro, G.R. No.
166508, 2009)
The sheriff may levy on debts due to the debtor, or
other credits, including bank deposits, financial
interests, royalties, commissions and other
personal property, not capable of manual delivery
in the possession or control of 3rd parties. Notice
must be served to the 3rd party. (Sec. 9(c), Rule
39).
Note: The unused balance of an overdraft account
is not a credit subject to garnishment. (Feria and
Noche, Civil Procedure Annotated, 2013 ed., vol.
2, p.181)
The garnishee or the 3rd person who is in
possession of the property of the judgment debtor
is deemed a forced intervenor. (Bank of the
Philippine Islands v. Lee, G.R. No. 190144, 2012)
d. Execution Of Judgments For Specific
Acts
Sale of Real or Personal Property
The officer must sell such property, describing it,
and apply the proceeds in conformity with the
judgment. (Sec. 10(b), Rule 39)
Delivery or Restitution of Real Property
The officer shall demand the losing party to
peaceably vacate the property within 3 working
days, and restore possession to judgment obligee;
otherwise, the officer shall oust such disobedient
party. (Sec. 10(c), Rule 39)
REMEDIAL LAW
A writ of execution directing the sheriff to cause the
defendant to vacate is in the nature of a habere
facias possessionem and authorizes the sheriff to
break open the premises where there is no
occupant therein. (Arcadio v. Ylagan, A.C. No.
2734, July 30, 1986)
Removal of Improvements on Property Subject
of Execution
Officer shall not destroy, demolish, or remove
improvements except upon special order of the
court. (Sec. 10(d), Rule 39)
But if demolition is involved, there must be a
special order. (Id.).
Delivery of Personal Property
The officer shall take possession of the same and
forthwith deliver it to the party entitled to satisfy
any judgment for money as therein provided. (Sec.
10(e), Rule 39)
Failure to Comply
If a party fails to comply within the time specified,
the court may direct the act to be done at the cost
of the disobedient party. (Sec. 10 (a), Rule 39)
When the party refuses to comply, the court can
appoint some other person at the expense of the
disobedient party and the act done shall have the
same effect as if the disobedient party performed
it. (Id.)
e. Execution Of Special Judgments
Special Judgment
A special judgment is one which requires the
performance of any other act than the payment of
money, or the sale or delivery of real or personal
property. (Moslem v. Soriano, G.R. No. L-36837,
1983)
For example, a judgment granting a petition for
mandamus is a special judgment, since a writ of
mandamus is a command directed to an inferior
court, tribunal, or board, or to some corporation or
person, requiring the performance of a particular
duty, and which duty results from the official
station of the party to whom the writ is directed, or
from operation of law. (National Housing Mortgage
Finance Corporation v. Abayari, G.R. No. 166508,
2009)
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Requisites:
1. The judgment requires performance of any act
other than payment of money, or the sale or
delivery of real or personal property.
2. A certified copy of the judgment shall be:
i. Attached to the writ of execution; and
ii. Served by the office upon:
3. Party against whom the judgment is rendered;
4. Any other person required by the judgment or
by law to obey the writ. (Sec. 11, Rule 39)
Failure to comply with special judgment under
Rule 39, Section 11 is punishable by contempt
by imprisonment. This is an exception to the rule
that contempt is not a remedy to enforce a
judgment. (Id.)
f. Effect Of Levy On Third Persons
The levy on execution creates 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. (Sec 12, Rule 39)
4. PROPERTIES EXEMPT FROM
EXECUTION
Except as otherwise expressly provided by law,
the following property, and no other, shall be
EXEMPT from execution:
i. Family home, or homestead, land necessarily
used in connection therewith;
ii. Ordinary tools and implements used in trade,
employment, or livelihood;
iii. Three (3) horses, cows, carabaos, or other
beast of burden necessarily used in his/her
ordinary occupation;
iv. Necessary clothing and articles for ordinary
personal use, except jewelry;
v. Household furniture and utensils necessary for
housekeeping that has value not exceeding
P100K;
vi. Provisions for individual or family use sufficient
for 4 months;
vii. Professional libraries and equipment;
viii.
One fishing boat and accessories value of
which does not exceed P100K used in
livelihood;
REMEDIAL LAW
ix. Salaries, wages, or earnings as are necessary
for support of family within 4 months preceding
levy;
x. Lettered gravestones;
xi. Monies, benefits, privileges, or annuities
accruing out of any life insurance; and
xii. Properties specially exempt from execution.
Other EXEMPTIONS:
i. Property mortgaged to DBP. (Section 26, C.A.
458);
ii. Property taken over by Alien Property
Administration. (Section 9[f], US Trading With
The Enemy Act);
iii. Savings of national prisoners deposited with
the Postal Savings Bank. (Act 2489);
iv. Backpay of pre-war civilian employees. (R.A.
304);
v. Philippine Government backpay to guerillas.
(R.A. 897);
vi. Produce, work animals, and farm implements
of agricultural lessees, subject to limitations.
(Section 21, R.A. 6389);
vii. Benefits from private retirement systems of
companies
and
establishments,
with
limitations. (R.A. 4917);
viii.
Labor wages, except for debts incurred for
food, shelter, clothing, and medical attendance.
(Civil Code, Art. 1708);
ix. Benefit payments from the SSS. (Section 16
R.A. 1161 as amended by P.D.s 24, 65, and
177);
x. Copyrights and other rights in intellectual
property under the former copyright law. (P.D.
49 cf. Section 239.3, R.A. 8293);
xi. Bonds issued under R.A. 1000. (NASSCO v.
CIR G.R. No. L-17874, 31 August 1963;
Regalado, F. Remedial Law Compendium Vol.
1, 9th ed., pp. 481-482)
But no article or species of property mentioned
under Section 13, Rule 39 shall be exempt from
execution issued upon a judgment recovered for
its price or upon a judgment of foreclosure of a
mortgage hereon.
Government Retirement Benefits Subject to
Execution Pursuant to a Protection Order
Under R.A. 9262
Based on Section 8(g) of R.A. 9262 (Anti-Violence
Against Women and Their Children Act), the court
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has the power to direct the employer to withhold
the appropriate amount from the Respondent’s
salary and to automatically remit the same to the
woman, despite what other laws provide. The
Supreme Court ruled that Section 8(g) of R.A.
9262, which is a later law, should be understood
to be an exception to the general rule prohibiting
garnishment of the government benefits. In
addition, the Supreme Court declared that the
law’s use of the term “employer” applies to all
employers, whether private or government.
(Republic of the Philippines vs. Daisy R. Yahon,
G.R. No. 201043, June 16,2014)
5. PROCEEDINGS WHERE PROPERTY IS
CLAIMED BY THIRD PERSONS; IN
RELATION TO THIRD PARTY CLAIM IN
ATTACHMENT AND REPLEVIN
Who May File Third Party-Claims
Any other person other than the judgment obligor
or his agent, i.e., the third-part claimant. (Sec. 16,
Rule 39)
Remedies of a Third-Party Claimant Under Sec.
16, Rule 39
Based on this section, a third-party claimant has
the following cumulative remedies:
a. He may avail of “terceria” by serving on the
levying officer an affidavit of his title or right of
possession over the levied property, and
serving also a copy to the judgment creditor;
Note: Terceria is a remedy available to a third
person other than the judgment obligor or his
agent who claims a property levied on. (Fermin
v. Esteves, G.R. No. 147977, 2008)
b. He may file a case for damages against the
bond issued by the judgment debtor within 120
days from the date of the filing of the bond;
Note: By availing of terceria, the officer served
with the affidavit of the third-party claimant shall
not be bound to keep the property claimed,
unless the judgment creditor files an
indemnity bond. It is such bond which the
third-party claimant can enforce against. It shall
be in a sum not less than the value of the levied
property. (Sec. 16, Rule 39).
REMEDIAL LAW
c. He may file "any proper action" to vindicate his
claim to the property. (Id.)
Note: A "proper action" is entirely distinct and
separate from that in which the judgment is
being enforced, filed with the court of
competent jurisdiction. Such a "proper action"
may have for its object the recovery of
ownership or possession of the property seized
by the sheriff, as well as damages from the
allegedly wrongful seizure and detention of the
property.
The availment of the remedy of terceria is not a
condition sine qua non to the filing of a "proper
action." An independent action may be resorted to
even before or without need of filing a claim in the
court which issued the writ. (Naguit v. Court of
Appeals, G.R. No. 137675, 2000)
Time to File a Terceria
A terceria may be filed at any time, so as long as
the sheriff has the possession of the property
levied upon, or before the property is sold under
execution.
Procedure in Making a Terceria
Third (3rd) Party Claimant should:
1. Make an affidavit of his/her title thereto, or
right of possession thereof, stating the
grounds of such right or title; and
2. Serve such affidavit upon the sheriff and a
copy thereof upon the judgment obligee.
Effect of Terceria
The officer shall not be bound to keep the property,
UNLESS the judgment obligee, on demand the
officer files an INDEMNITY BOND approved by
the court to indemnify the third party claimant in a
sum not less than the value of the property levied
on.
In case of disagreement as to the value of the
property, the court issuing the writ shall determine
the same.
The officer shall not be liable for damages to any
third-party claimant if such bond is filed by the
judgment obligee for the taking or keeping of the
property.
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Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property in a SEPARATE action.
However, the judgment obligee can claim
damages against a third-party claimant who filed a
frivolous or plainly spurious claim, and such
judgment obligee can institute proceedings
therefor in the SAME or SEPARATE action.
When the writ of attachment is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
NOT be required, and in case the sheriff is sued
for damages as a result of the attachment, he shall
be represented by the Solicitor General, and if
held liable therefor, the actual damages adjudged
by the court shall be paid by the National
Treasurer out of the funds to be appropriated for
the purpose. (Sec. 16, Rule 39)
In Relation to Third-Party Claim in Attachment
and Replevin
Proceedings where property is claimed by a third
person are the same as to a judgment obligee
(final and executory judgments), an attaching
party (attachment), and an applicant praying for
recovery of possession of personal property
(replevin), EXCEPT that the amount of the
INDEMNITY BOND they file differs.
Attachment (Rule 57)
To keep the property in the possession of the
sheriff, the ATTACHING PARTY or his AGENT,
on demand of the sheriff, shall file a BOND
approved by the court to indemnify the third-party
claimant in a sum not less than the value of the
property levied upon. (Sec. 14, Rule 57)
Remedy: Nothing shall prevent a claimant or any
third person from vindicating his claim to the
property, or prevent the attaching party from
claiming damages against a third-party claimant
who filed a frivolous or plainly spurious claim, in
the SAME or a SEPARATE action. (Sec. 14, Rule
57)
Replevin
To keep the property in the possession of the
sheriff or to have the latter deliver the property to
the applicant, 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 double the value of the
property as stated in the applicant’s affidavit.
(Sec. 7, Rule 60)
Remedy: Nothing shall prevent claimant or any 3rd
person from vindicating his claim to the property,
or prevent the applicant from claiming damages
against a 3rd-party claimant who filed a frivolous or
plainly spurious claim, in the SAME or a
SEPARATE action. (Id.)
RETURN OF WRIT OF EXECUTION
The writ of execution shall be returnable to the
court immediately after the judgment has been
satisfied in part or in full.
If the judgment cannot be satisfied in full within
thirty (30) days after receipt of the writ, the officer
shall report to the court and state the reason
therefor. (Sec. 14, Rule 39)
Lifetime of the Writ of Execution
The writ shall continue in effect during the period
within which the judgment may be enforced by
motion. (Id.) Thus, the writ is enforceable within
the five (5) year period from entry of judgment.
(Sec. 5, Rule 39).
EXECUTION SALE
Notice of Sale of Property on Execution
If PERISHABLE property: notice is made by
posting a written notice of the time and place of the
sale in three (3) public places, preferably in
conspicuous areas of the municipal or city hall,
post office and public market where the sale is to
take place, for such time as may be reasonable,
considering the character and condition of the
property.
OTHER PERSONAL property: notice is made by
posting a similar notice in three (3) public places
above-mentioned for not less than five (5) days.
If REAL property: notice is made by posting for
20 days in three (3) public places a similar notice
particularly describing the property and stating
where the property is to be sold.
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 If the assessed value of the property exceeds
P50,000, notice is made by:
o Publishing a copy of the notice once a week
for two (2) consecutive weeks in one (1)
newspaper selected by raffle (whether in
English, Filipino, or any major regional
language published, edited and circulated
or, in the absence thereof, having general
circulation in the province or city).
execution and the costs that have been incurred
therein. (Sec. 18, Rule 39)
In ALL cases, a written notice of the sale shall be
given to the judgment obligor, at least three (3)
days before the sale, except as provided in
paragraph (a) where notice shall be given at any
time before the sale. It shall specify the place,
date and exact time of sale (between 9AM and
2PM). (Sec. 15, Rule 39,)
After sufficient property has been sold to satisfy
the execution, no more shall be sold and any
excess shall be promptly delivered to the judgment
obligor or his/her authorized representative,
unless otherwise directed by the judgment or order
of the court. (Sec. 19, Rule 39)
Penalty For Selling Without Notice, or
Removing or Defacing Notice
The following are liable for actual and punitive
damages:
a. An officer selling without the notice required
under Section 15; and
b. A person willfully removing or defacing the
notice posted, if done before the sale, or before
satisfaction of judgment if satisfied before the
sale.
Actual and punitive damages may be recovered by
motion in the same action. (Sec. 17, Rule 39)
Place of Sale
A. It may be agreed upon by the parties; or
B. In the absence of such agreement, the sale will
be held in:
a. Sale or Real or Personal Property NOT
Capable of Manual Delivery:
 Office of the Clerk of Court of MTC; or
 RTC which issued the writ or was
designated by the appellate court
b. Sale of Personal Property Capable of
Manual Delivery:
 Place where property is located. (Sec.
15, Rule 39)
No Sale if Judgment and Costs Paid
At any time before the sale of property on
execution, the judgment obligor may prevent the
sale by paying the amount required by the
How Property Sold on Execution; Who May
Direct Manner And Order of Sale
Sales of property under execution must be made:
1. At public auction;
2. To the highest bidder; and
3. To start at the exact time fixed in the notice.
ORDINARY SALE ON
EXECUTION
No
need
confirmation of
court
SALE IN JUDICIAL
FORECLOSURE OF
MORTGAGE
for Must be confirmed by
the the court
Right of redemption No right of redemption
exists
when
real except
by
the
property is involved.
mortgagor where the
mortgagee is a bank or
a banking institution.
(see Section 47 of
General Banking Law
of 2000)
If the mortgagee is a
non-banking
institution, there is no
right to redeem. Only
equity of redemption is
available.
Title is acquired after
the expiration of the
period of redemption
when the final deed of
conveyance
is
executed.
Title is acquired upon
entry
of
the
confirmation
and
registration of
the
foreclosure sale.
Refusal of Purchaser to Pay
The officer may again sell the property to the
highest bidder and shall not be responsible for any
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loss occasioned thereby. But the court may order
the refusing purchaser to pay to the court the
amount of such loss with costs. The court may
punish him/her for contempt if he/she disobeys the
order. The officer may then reject any subsequent
bid of such purchaser who refuses to pay. (Sec.
20, Rule 39)
If Judgment Obligee is Purchaser
When the purchaser is the judgment obligee, and
no third party claim has been filed, he/she need
not pay the amount of the bid if it does not exceed
the amount of his/her judgment. If it does, he/she
shall pay only the excess. (Sec. 21, Rule 39)
Adjournment of Sale
a. With 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.
b. Without such written consent: the officer may
adjourn the sale from day to day if it becomes
necessary to do so for lack of time. (Sec. 22,
Rule 39)
REMEDIAL LAW
Conveyance of Real Property; Certificate
thereof Given to Purchaser and Filed with the
Registry of Deeds
The officer must give to the purchaser a certificate
of sale.
Contents of the CERTIFICATE OF SALE:
1. A particular description of the real property
sold;
2. The price paid for each distinct lot or parcel;
3. The whole price paid by him/her; and
4. A statement that the right of redemption expires
1 year from the date of the registration of the
certificate of sale. (Sec. 25, Rule 39)
Note: The certificate of sale in this case is merely
provisional. No court confirmation is required.
Certificate of Sale Where Property is Claimed
by Third Person
The certificate of sale must make express mention
of the existence of such third-party claim. (Sec. 26,
Rule 39)
6. RULES ON REDEMPTION
Conveyance to Purchaser of Personal Property
Capable of Manual Delivery
When the purchaser pays the purchase price, the
officer making the sale must deliver the property to
the purchaser and, if desired, execute and deliver
to him/her a certificate of sale. (Sec. 23, Rule 39)
Conveyance to Purchaser of Personal Property
NOT Capable of Manual Delivery
When the purchaser pays the purchase price, the
officer must execute and deliver a certificate of
sale. The certificate conveys to the purchaser all
the rights which the judgment obligor had in the
property as of the date of the levy on execution
or preliminary attachment. (Sec. 24, Rule 39)
Note: The execution and delivery of a certificate of
sale is mandatory for personal property not
capable of manual delivery (unlike in conveyance
of personal property capable of manual delivery).
This constitutes symbolic delivery.
Right of redemption is only for real properties.
Who may redeem REAL property
a. The JUDGMENT OBLIGOR; or
b. His SUCCESSOR IN INTEREST in the whole
or any part of the property;
A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under
which the property was sold. Such redeeming
creditor is termed a REDEMPTIONER. (Sec. 27,
Rule 39)
Period to redeem
A. Judgment Debtor: Within one (1) year from
the date of registration of the certificate of sale.
B. Redemptioner:
a. Within one (1) year from the date of
registration of the certificate of sale if he/she
is the first redemptioner; and
b. Within 60 days from the last redemption, if
he/she is a subsequent redemptioner. (Sec.
28, Rule 39)
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Note: The periods for redemption are not
extendible or interrupted.
The parties may,
however, agree on a longer period. In such case,
it would be a conventional redemption. (Lazo v.
Republic Surety & Insurance Co., G.R. No. 27365,
1970)
The judgment debtor has always one year from the
registration of the certificate of sale within which to
redeem, regardless of whether there have been
any prior redemptions and the date of such
redemptions; and the moment said judgment
debtor redeems, there shall be no further
redemption.
The redemptioner, on the other hand, must
redeem within the one-year period, if he is the first
redemptioner, and within 60 days from the last
redemption, if he is a subsequent redemptioner,
provided that the judgment debtor has not
exercised his right of redemption. (Regalado,
Remedial Law Compendium, Vol. I, Sixth Revised
Edition, p. 457)
Redemption Price
The following are included in the redemption price
to be paid by the redeeming party:
A. If redeemed by the judgment obligor or first
redemptioner:
1. Purchase price;
2. 1%interest per month thereon, up to the
time of redemption;
3. Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate; and
4. If the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
B. If redeemed by subsequent redemptioners:
1. Amount paid on the last redemption;
2. 2% interest per month thereon;
3. Any amount of assessments or taxes which
the last redemptioner may have paid
thereon after redemption by him/her with
interest on such last named amount; and
4. Amount of any liens held by said last
redemptioner prior to his/her own, with
interest. (Sec. 28, Rule 39)
REMEDIAL LAW
The formal offer to redeem accompanied by a
bona fide tender of the redemption price within the
period of redemption prescribed by law, is only
essential to preserve the right of redemption for
future enforcement even beyond such period of
redemption. The filing of the action itself, within the
period of redemption, is equivalent to a formal offer
to redeem. (Tolentino v. Court of Appeals, G.R.
No. 50405-06, 1981)
Certificate of Redemption
The person to whom redemption is made must
execute and deliver a certificate of redemption
acknowledged before a notary public or other
officer authorized to take acknowledgments of
conveyances of real property. (Sec. 29, Rule 39)
Proof
of
Redemption
Required
by
Redemptioner
A redemptioner must produce to the officer, or
person from whom he/she seeks to redeem, and
serve with his/her notice to the officer:
i. A copy of the judgment or final order
certified by the clerk of the court wherein the
judgment or final order is entered; or,
ii. If he/she redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by the registrar of deeds, or an
original or certified copy of any assignment
necessary to establish his/her claim; and
iii. An affidavit executed by him/her or his/her
agent, showing the amount then actually due
on the lien. (Sec. 30, Rule 39)
Manner
of
Using
Premises
Pending
Redemption; Waste Restrained
Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of WASTE on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or without
notice. (Sec. 31, Rule 39)
BUT it is NOT waste for a person in possession of
the property at the time of the sale, or entitled to
possession afterwards, during the period allowed
for redemption:
a. To continue to use it in the same manner in
which it was previously used;
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b. To use it in the ordinary course of husbandry;
or
c. To make the necessary repairs to buildings
thereon while he/she occupies the property.
(Sec. 31, Rule 39)
Rents, Earnings and Income of Property
Pending Redemption
All rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his/her
period of redemption. (Sec. 31, Rule 39)
Deed and Possession to be Given at Expiration
of Redemption Period; By Whom Executed or
Given
a. If NO redemption is made within one (1) year
from the date of the registration of the
certificate of sale - the purchaser is entitled to
a conveyance and possession of the property;
b. If redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time
for redemption has expired – the last
redemptioner is entitled to the conveyance
and possession.
In all cases the judgment obligor shall have the
entire period of one (1) year from the date of the
registration of the sale to redeem the property.
The deed shall be executed by:
a. The officer making the sale; or
b. His/her successor in office.
Recovery of Price if Sale Not Effective; Revival
of Judgment
The purchaser may recover the purchase price if:
A. The purchaser or his/her successor-in-interest,
fails to recover the possession thereof; or
B. The purchaser or his/her successor-in-interest
is evicted therefrom:
a. In consequence of irregularities in the
proceedings concerning the sale; or
b. Because the judgment has been reversed
or set aside; or
c. Because the property sold was exempt from
execution; or
d. Because a third person has vindicated
his/her claim to the property.
REMEDIAL LAW
The purchaser may:
a. File a motion in the same action or in a
separate action to recover from the judgment
obligee the price paid, with interest, or so much
thereof as has not been delivered to the
judgment obligor, or
b. File a motion to have the original judgment
revived in his/her name for the whole price with
interest, or so much thereof as has been
delivered to the judgment obligor. (Sec. 34,
Rule 39)
Note: The judgment so revived shall have the
same force and effect as an original judgment
would have as of the date of the revival and no
more.
Right to Contribution or Reimbursement
Contribution and reimbursement may be obtained
in a separate action, unless cross claims have
been filed and adjudicated in the same action, in
which case, execution may issue to compel
contribution or reimbursement. (Feria and Noche,
Civil Procedure Annotated, 2013 ed., vol. 2)
7. EXAMINATION OF JUDGMENT OBLIGOR
WHEN JUDGMENT IS SATISFIED
Upon return of writ of execution, and judgment is
still unsatisfied, the creditor may ask the court to
require the debtor to appear and his/her property
or income be examined. (Sec. 6, Rule 39)
Limitation
No judgment obligor shall be required to appear
before a court or commissioner outside the
province or city in which such obligor resides or is
found.
8. EXAMINATION OF DEBTORS OF THE
JUDGMENT OBLIGOR
The court may order to be examined any person
or corporation who has property of the debtor, or
is indebted to the debtor in order to bind the credits
due to debtor. (Sec. 37, Rule 39)
Enforcement of Attendance and Conduct of
Examination
A party or other person may be compelled, by an
order or subpoena, to attend before the court or
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REMEDIAL LAW
commissioner to testify as provided in Sections 36
and 37. (Sec. 38, Rule 39)
between the same parties involving a different
cause of action.
9. EFFECT OF JUDGMENT AND FINAL
ORDERS
Res Judicata or Bar By Prior Judgment
A judgment or decree of a court of competent
jurisdiction concludes the litigation between the
parties and their successors or privies and bars a
new action or suit involving the same cause of
action.
Effects of Judgments In Rem:
The judgment or final order is CONCLUSIVE upon
the title to the thing, the will or administration or the
condition, status or relationship of the person in
case of a judgment or final order:
a. Against a specific thing; or
b. In respect to the probate of a will; or
c. The administration of the estate of a deceased
person; or
d. In respect to the personal, political, or legal
condition or status of a particular person or his
relationship
to
another
(Example:
naturalization, adoption, and annulment of
marriage)
Exception: The probate of a will or granting of
letters of administration shall only be PRIMA
FACIE evidence of the death of the testator or
intestate. (Sec. 47(a), Rule 39)
Effects of Judgments In Personam
In OTHER CASES, the judgment or final order is,
with respect to the matter directly adjudged or as
to any other matter that could have been missed
in relation thereto, CONCLUSIVE between the
parties and their successors in interest, by title
subsequent to the commencement of the action or
special proceeding, litigating for the same thing
and under the same title and in the same capacity.
(RES JUDICATA or BAR BY PRIOR JUDMENT)
(Sec. 47(b), Rule 39)
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. (ESTOPPEL BY
JUDGMENT OR CONCLUSIVENESS OF
JUDGMENT) (Sec. 47(c), Rule 39)
Judgment is deemed CONCLUSIVE when the
issues actually and directly resolved in a former
suit cannot again be raised in any future case
Res Judicata v Conclusiveness of Judgment
Res judicata (meaning, a “matter adjudged”) is a
fundamental principle of law which precludes
parties from re-litigating issues actually litigated
and determined by a prior and final judgment.
There is a bar by prior judgment where there is
identity of parties, subject matter, and causes of
action between the first case where the judgment
was rendered and the second case that is sought
to be barred. There is conclusiveness of
judgment, on the other hand, where there is
identity of parties in the first and second cases, but
no identity of causes of action. (De Leon v Dela
Llana, G.R. No. 212277, 2015)
Estoppel by Judgment or Conclusiveness of
Judgment
Any right, fact or matter in issue which has been
directly adjudicated upon or is necessarily
involved in the determination of the action by a
competent court is conclusively settled by the
judgment or final order and CANNOT be litigated
again by the parties and their privies.
Generally, decisions in administrative cases are
not binding on criminal proceedings. Thus, an
absolution from a criminal charge is not a bar to an
administrative prosecution or vice versa. However,
this case does not involve an administrative
charge stemming from the same set of facts
involved in the criminal proceeding. The DARAB
case involves a determination of whether there
exists a tenancy relationship between X and Y,
while the criminal case involves determination of
whether X committed theft. However, the tenancy
relationship is a factor in determining all the
elements of theft. Hence, findings of fact of
administrative agencies in the exercise of quasijudicial powers are entitled to respect if supported
by substantial evidence. (People v Ligtas G.R.
200751, August 17, 2015)
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REMEDIAL LAW
10. ENFORCEMENT AND EFFECT OF
FOREIGN JUDGMENTS OR FINAL ORDERS
i. 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.
ii. In case of a judgment or final order AGAINST
A PERSON:
 The judgment or final order is presumptive
evidence of a right as between the parties
and their successors in interest by a
subsequent title.
iii. In EITHER case, the judgment or final order
may be REPELLED by evidence of:
a. Want of jurisdiction;
b. Want of notice to the party;
c. Collusion;
d. Fraud; or
e. Clear mistake of law or fact.
Enforcement
In order to enforce a foreign judgment in the
Philippines, it is necessary to file an action
based on said judgment. A foreign judgment is
presumed valid and binding in the country from
which it comes, until the contrary is show. (Feria
and Noche, Civil Procedure Annotated, 2013 ed.,
vol. 2, p. 287)
Recognition
A defendant in a Philippine court may invoke a
foreign judgment as res judicata in his defense. It
is not necessary to institute a separate action
or proceeding for recognition of the foreign
judgment, as long as the parties opposed to the
judgment on the grounds of want of jurisdiction,
want of notice to the party, collusion, fraud, or clear
mistake of law or fact, have the opportunity to
challenge the foreign judgment. (Id. at p. 288)
———— end of topic ————
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PROVISIONAL
REMEDIES
Remedial Law
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IV. PROVISIONAL REMEDIES
TOPIC OUTLNE UNDER THE 2020 SYLLABUS
IV. PROVISIONAL REMEDIES
A. NATURE AND PURPOSE
B. JURISDICTION
OVER
PROVISIONAL
REMEDIES
C. PRELIMINARY ATTACHMENT
1. Grounds for issuance of writ of attachment
2. Requisites
3. Issuance and contents of order of
attachment; affidavit and bond
4. Rule on prior or contemporaneous service
of summons
5. Manner of attaching real and personal
property; when property attached is
claimed by third person
6. Discharge of attachment and the counterbond
7. Satisfaction of judgment out of property
attached
8. Compared with garnishment and levy on
execution
D. PRELIMINARY INJUNCTION
1. Definitions and differences: preliminary
injunction, temporary restraining order,
and status quo ante order
2. Requisites
3. Kinds of injunctions; kinds of temporary
restraining orders
4. When writ may be issued, when writ may
not be issued
5. Grounds for issuance of preliminary
injunction
6. Grounds for objection to, or for the
dissolution of injunction or restraining order
7. Duration of temporary restraining orders
8. Rule on prior or contemporaneous service
of summons in relation to attachment
E. RECEIVERSHIP
1. Cases when receiver may be appointed
2. Requisites
3. Requirements before issuance of an order
4. General powers of a receiver
5. Two kinds of bonds
6. Termination of receivership
F. REPLEVIN
1. When may writ be issued
2. Requisites
3. Affidavit and bond; redelivery bond
REMEDIAL LAW
4. Sheriffs duty in the implementation of the
writ; when property is claimed by third
party
G. PROVISIONAL REMEDIES AND INTERIM
RELIEFS UNDER SPECIAL LAWS AND
RULES
1. Provisional remedies of the Family Courts
2. Human Security Act
3. Anti-Violence against Women and
Children Act
4. Anti-Money Laundering Act
5. Financial Rehabilitation and Insolvency
Act
6. Precautionary Hold Departure Orders
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A. NATURE AND PURPOSE
Nature of Provisional Remedies
Provisional remedies are temporary and ancillary
remedies to which party-litigants may resort for the
preservation or protection of their rights or
interests, and for no other purpose, during the
pendency of the principal action. (FERIA &
NOCHE, 2013)
Purpose of Provisional Remedies
i. To protect the rights of a party during the
litigation;
ii. To secure the judgment;
iii. To preserve the subject matter of the litigation;
iv. To preserve the status quo / status quo ante;
v. To prevent very serious damage; or
vi. To meet a very urgent need.
(RIANO, 2016).
Provisional Remedies under the Rules of Court
1. Preliminary Attachment (Rule 57);
2. Preliminary Injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60); and
5. Support Pendente Lite (Rule 61).
Note: This enumeration is not exclusive. (Lorenzo
Shipping Corp. v. Villarin, G.R. Nos. 175727 &
178713, 2019)
In one case, the Court upheld the validity of an
order of the trial court to the petitioner to make a
deposit of the down payment paid by the
respondent to the former pursuant to an
annulment of a contract of sale. In upholding the
order, the Court mentioned that there is a hiatus in
the law and in the Rules of Court. If left alone, the
hiatus will result in unjust enrichment to the
petitioner at the expense of respondent. The
hiatus may also imperil restitution. (Reyes v. Lim,
G.R. No. 134241, 2003)
Other Laws Providing For Provisional
Remedies
1. VAWC (R.A. 9282);
2. Marital cases (nullity, annulment, legal
separation) (A.M. 02-11-12-SC);
3. Human Security Act of 2007 (R.A. 9372);
4. Anti-Money Laundering Act of 2001 (R.A.
9160);
REMEDIAL LAW
5. Financial Rehabilitation an Insolvency Act of
2010 (R.A. 10142);
6. Special rules under Alternative Dispute
Resolution Act (R.A. 9285);
7. Custody of minors (A.M. 03-04-04-SC);
8. Provisional remedies relative to the rule on
Writ of Amparo and Writ of Habeas Data;
9. Rules of Procedure for Environmental Cases
(A.M. No. 09-6-8-SC);
10. Precautionary Hold Departure Orders (A.M.
No. 18-07-05-SC).
B. JURISDICTION OVER PROVISIONAL
REMEDIES
The court which has jurisdiction over the main
action is the court which may grant or issue a
provisional remedy. (RIANO, 2009)
All inferior courts can grant all appropriate
provisional remedies. The enforcement of said
writs outside the territorial jurisdiction of the inferior
court no longer requires the approval of the RTC.
Except for the provisional remedy of support
pendente lite, because the main case wherein this
remedy may be involved is within the jurisdiction
of the Regional Trial Court. (Regalado, 2008)
C. PRELIMINARY ATTACHMENT
Nature of Preliminary Attachment
Attachment is 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 any judgment that may be
recovered by the plaintiff or any proper party. (Olib
v. Pastoral, G.R. No. 81120, 1990)
Preliminary attachment, under Rule 57, is an
ancillary remedy applied not for its own sake but
to enable the attaching party to realize upon the
relief sought and expected to be granted in the
main or principal action; it is a measure auxiliary or
incidental to the main action.
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As such, it is available during its pendency which
may be resorted to by a litigant to preserve and
protect certain rights and interests during the
interim, awaiting the ultimate effects of a final
judgment in the case. (Lim, Jr. v. Sps. Lazaro,
G.R. No. 185734, Jul. 3, 2013)
It is a proceeding quasi in rem. (Banco-Español
Filipino v. Palanca, G.R. No. L-11390, Mar. 26,
1918)
The attachment of the property of the defendant
converts an ordinary action in personam into an
action quasi in rem. In such case, jurisdiction over
the person of the defendant is not required as long
as the court acquires jurisdiction over the res.
(Biaco v. Countryside Rural Bank, G.R. No.
161417, 2007)
Attachment is purely a statutory remedy, and it
cannot exist without a statute. Its legal bases for
application include Rule 57 of the Rules of Court
and Article 1177 of the Civil Code, which
authorizes a creditor to pursue the property of the
debtor. (RIANO, 2009, p. 538)
Who May Apply For a Writ of Preliminary
Attachment
A plaintiff or any proper party may have the
property of the adverse party attached. (Sec. 1,
Rule 57)
Thus, a writ of preliminary attachment may be
issued in favor of a defendant who sets up a
counterclaim. (De Borja v. Platon, G.R. No. 48080,
1942)
Purposes of Preliminary Attachment
i. To seize the property of the debtor before final
judgment and put the same in custodia legis
even while the action is pending for the
satisfaction of a later judgment. (Insular Bank
of Asia and America v. Court of Appeals, G.R.
No. L-61011, 1990)
ii. To enable the court to acquire jurisdiction over
the res or the property subject of the action in
cases where service in person or any other
service to acquire jurisdiction over the
defendant cannot be effected. (Philippine
Commercial International Bank v. Alejandro,
G.R. No. 175587, 2008)
REMEDIAL LAW
Kinds of Attachments
1. PRELIMINARY ATTACHMENT - issued at the
commencement of the action or at any time
before entry of judgment as security for the
satisfaction of any judgment that may be
recovered. The court takes custody of the
property. (Sec. 1, Rule 57);
2. GARNISHMENT - plaintiff reaches a credit/s
belonging to the defendant and owing to him
from a third person who is a stranger to the
litigation. It does not involve actual seizure of
the property; it simply impounds the property in
the garnishee’s possession and maintains the
status quo until the main action is finally
decided. (Sec. 7(d), Rule 57; Sec. 9(c), Rule
39);
3. LEVY ON EXECUTION - the writ issued by the
court after judgment by which the property of
the judgment obligor is taken into custody of the
court before the sale of the property on
execution. (Sec. 9[b], Rule 39)
When Writ May be Availed of
An application for the issuance of a writ of
attachment may be filed:
a. At the commencement of the action; or
b. At any time before entry of judgment. (Sec. 1,
Rule 57).
Before the determination of the liability of the
adverse parties, the writ of preliminary attachment
may properly issue. The attachment does not
affect the decision of the case on the merits, the
right to recover judgment on the alleged
indebtedness and the right to attach the property
of the debtor being entirely separate and distinct.
As a rule, the judgment in the main action neither
changes the nature nor determines the validity of
the attachment. (Peroxide Philippines Corp. v.
Court of Appeals, G.R. No. 92813, 1991)
Effectivity of Preliminary Attachment
The lien continues until the debt is paid, or the sale
is made under execution issued on the judgment,
or until the judgment is satisfied, or the attachment
discharged or vacated in the same manner
provided by law. (Lim, Jr. v. Sps. Lazaro, G.R. No.
185734, 2013)
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1. GROUNDS FOR ISSUANCE OF
PRELIMINARY ATTACHMENT
The following are the grounds for the issuance of
a preliminary attachment:
A. In an action for the recovery of a specified
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi-contract,
delict, or quasi-delict against a party who is
about to depart from the Philippines with the
intent to defraud his creditors;
B. In an action for money or property embezzled
or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his employment
as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
C. In an action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the property, or
any part thereof, has been concealed, removed
or disposed of to prevent its being found or
taken by the applicant or an authorized person;
D. In an action against a party who has been guilty
of a fraud in contracting the debt or incurring
the obligation upon which the action is brought,
or in the performance thereof;
E. In an action against a party who has removed
or disposed of his property, or is about to do so,
with intent to defraud his creditors; and
F. In an action against a party who does not reside
in the Philippines, or on whom summons may
be served by publication. (Sec. 1, Rule 57)
Note: In grounds 1 to 5, fraud (e.g., in fraud of
creditors, fraudulent detention or removal,
embezzlement, etc.) is an essential requirement.
Further, the enumeration in Rule 57, Sec. 1 is
exclusive.
Also Note: Insolvency is not a ground for
issuance of a writ. The fact that the defendant
company’s bank account has been reduced to nil
is not a ground for the issuance of attachment.
(Aboitiz v. Cotabato Bus Co., G.R. No. L-35990,
Jun. 17, 1981).
REMEDIAL LAW
But the mere fact of failure to pay after the
obligation to do so has become due and despite
several demands is not enough to warrant the
issuance of a writ of preliminary attachment. (Mt.
Banahaw Wood Industries, Inc. v. Naga Dynasty
Allied Marketing Corp., G.R. No. 211179, 2019)
Two Kinds of Fraud Contemplated in Rule 57,
Section 1(d): Fraud in Contracting & Fraud in
Performance of the Obligation
1. Dolo causante – fraud to induce another to
enter into a contract which renders it voidable.
(Articles 1330, 1338, 1390, Civil Code);
2. Dolo incidente – fraud employed in the
fulfillment of the obligation which obliges the
payment of damages (Article 1344, Civil
Code)
Fraud Committed Need Not be Criminal Fraud
The conduct of the corporate officer was more
than an irregularity (i.e., unauthorized taking of
corporate funds and appropriating for its own use);
and while it is not sufficiently serious to constitute
criminal fraud, it is undoubtedly a fraud of a civil
character because it is an abuse of confidence to
the damage of the corporation and its stockholders
and constitutes one of the grounds enumerated for
the issuance of a preliminary attachment. (Olsen
and Co. v. Olsen, G.R. No. 23237, 1925)
Fraud Must be Alleged With Particularity
A writ of preliminary attachment is too harsh a
provisional remedy to be issued based on mere
abstractions of fraud. Rather, the rules require
that for the writ to issue, there must be a recitation
of clear and concrete factual circumstances
manifesting that the debtor practiced fraud upon
the creditor at the time of the execution of their
agreement in that said debtor had a preconceived
plan or intention not to pay the creditor. (Equitable
Bank v. Special Steel, G.R. No. 175350, 2012)
Example of Fraud
As a security to the loan contracted, defendant
offered a fake title and a vehicle heavily
mortgaged. He subsequently sold the vehicle and
his two condo units before the case was filed
against him. (Liberty Insurance v. CA, G.R. No.
104405, 1993)
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Removal of Property
Under Sec. 1(e) of Rule 57, two requisites must be
satisfied to justify a preliminary attachment:
a. There is a removal or disposal of the property;
and
b. The removal or disposal must be with intent to
defraud the creditor. (RIANO, 2009, p. 544).
Mere removal or disposal of property, by itself, is
not ground for issuance of preliminary attachment,
notwithstanding absence of any security for the
satisfaction of any judgment against the
defendant. The removal or disposal, to justify
preliminary attachment, must have been made
with intent to defraud defendants’ creditors.
(Carpio v. Macadaeg, G.R. No. 17797, 1963).
The execution of a mortgage in favor of another
creditor is not conceived by the Rules as one of
the means of fraudulently disposing of one’s
property. By mortgaging a piece of property, a
debtor merely subjects it to a lien but ownership is
not parted with. (Adlawan v Torres, G.R. Nos.
65957-58, July 5, 1994)
Service of Summons By Publication
See earlier discussion on Service of Summons by
Publication.
Rule 14, Sec. 16 of the Rules of Court expressly
states that in any action where the defendant is
designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service
may, with leave of court, be effected upon him by
publication in a newspaper of general circulation.
Thus, the rule applies to any action, whether in
personam, in rem, or quasi in rem. (Santos v.
PNOC, G.R. No. 170943, 2008)
Note: Substituted service is the normal mode of
service of summons that will confer jurisdiction on
the court over the person of residents temporarily
out of the Philippines. Hence, the court may
acquire jurisdiction over an action in personam by
mere substituted service without need of attaching
the property of the defendant. (PCIB v Alejandro,
G.R. No. 177857, 2007)
Under this ground, the purpose of the attachment
is to reach his property in the Philippines and to
REMEDIAL LAW
dispense with the need for acquiring jurisdiction
over his person. (RIANO, 2009, p. 545).
2. REQUISITES
1. Application - An application may be filed at the
commencement of the action, or at any time before
entry of judgment. (Rule 57, Sec. 1)
If applied for at the commencement of the action,
it must be incorporated in a verified complaint
alleging all the grounds relied upon and complying
with all the requisites for the grant of the
application. Here, the writ may be granted ex parte
or even before summons is served. If not applied
for at the commencement of the action, it must
only be applied for after service of summons upon
the defendant. (Davao Light & Power Co., Inc. v.
Court of Appeals, G.R. No. 93262, 1991).
See discussion on Prior or Contemporaneous
Service
of
Summons
for
Rules
on
Implementation/Execution of Writ of Attachment.
2. Affidavit – To ensure that the applicant states
the truth by requiring him to allege the presence of
all the legal requirements under oath. The affidavit
is the foundation of the writ and if none is filed or
one is filed but wholly fails to set out some facts
required by law to be stated therein, there is no
jurisdiction and the proceedings are null and void.
(Jardine-Manila Finance, Inc. v. Court of Appeals,
G.R. No. 55272, 1989)
3. Attachment Bond – Executed in favor of the
adverse party in an amount fixed by the court, the
bond is conditioned to pay all the costs which will
be adjudged the adverse party and all damages he
may sustain if the court should later rule that the
applicant is not entitled to the attachment. (Sec. 4,
Rule 57).
The surety is liable for all damages and not only
for damages sustained during the appeal as this is
its commitment. (Phil. Charter Insurance v CA,
G.R. No. 88379, 1989)
The writ will not be issued if a real estate mortgage
exists to secure the obligation. (Salgado v. CA,
G.R. No. 55381, 1994)
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3. ISSUANCE AND CONTENTS OF ORDER
OF ATTACHMENT; AFFIDAVIT AND BOND
demand or the value of the property attached,
EXCLUSIVE of costs. (Secs. 2 and 3, Rule 57).
Three Stages in the Grant of Preliminary
Attachment
I. The court issues the order granting the
application;
II. The writ of attachment is issued pursuant to an
order of the court granting the writ; and
III. The writ is enforced/implemented. (Torres v.
Satsatin, G.R. No. 166759, 2009).
Several writs may be issued at the same time to
the sheriffs of the courts of different judicial
regions. (Rule 57, Sec. 2)
Note: For Stages 1 and 2, it is NOT necessary that
jurisdiction over the person of the defendant be
first obtained. But in Stage 3, the court must have
acquired jurisdiction over the defendant, because
without such jurisdiction, the court has no power or
authority to act in any manner against the
defendant. (Cuartero v. CA, G.R. No. 102448,
1992).
Hence, when the sheriff or other proper officer
commences implementation of the writ of
attachment, it is essential that he serve on the
defendant not only a copy of the applicant's
affidavit and attachment bond, and of the order of
attachment, as explicitly required by Section 5 of
Rule 57, but also the summons addressed to said
defendant. (Davao Light & Power Co., Inc. v. Court
of Appeals, G.R. No. 93262, 1991).
But prior or contemporaneous service of summons
may be dispensed with under certain exceptions.
(Sec. 5, Rule 57; see further discussions on Rule
on Prior or Contemporaneous Service of
Summons).
Issuance of the Order
An order of attachment may be issued either ex
parte or upon motion with notice and hearing by:
a. The court in which the action is pending;
b. The Court of Appeals; or
c. The Supreme Court. (Sec. 2, Rule 57).
The order must require the sheriff of the court to
attach so much of the property in the Philippines
of the party against whom it is issued (must not be
exempt from execution) as may be sufficient to
satisfy the applicant’s demand, UNLESS such
party makes a deposit or gives a bond, which may
be the amount sufficient to satisfy the applicant’s
Ex parte grant of the writ is allowed because it is
possible that during the course of the hearing, the
part against whom the writ is sought may dispose
of his property or abscond before the writ is issued.
(Filinvest v. Relova, G.R. No. L-50378, 1982)
Affidavit
An order of attachment shall be granted only when
it appears that it is supported by an affidavit which
contains:
1. A sufficient cause of action exists;
2. The case is one of those mentioned in Sec. 1,
Rule 57;
3. There is no other sufficient security for the
claim sought to be enforced by the action; and
4. The amount due to the applicant is as much as
the sum for which the order is granted above all
legal counterclaims. (Sec. 3, Rule 57).
The affidavit may be made by:
a. The applicant of the writ of preliminary
attachment; or
b. Some other person who personally knows the
facts. (Id.).
It is not enough to state that a sufficient cause of
action exists. The applicant must state the facts
constituting the cause of action, as well as facts,
i.e. place, time, date, to illustrate the grounds for
attachment relied upon.
A bare allegation that an encumbrance of property
is in fraud of creditors does not suffice. Factual
bases for such conclusion must be clearly averred.
(Adlawan v Torres, G.R. No. 65957-58, 1994)
Bond
The party applying for the order of attachment
must thereafter give a bond which is:
1. Executed to the adverse party;
2. In the amount fixed by the court in its order
granting the issuance of the writ;
3. Conditioned that the applicant will pay all the
costs which may be adjudged to the adverse
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REMEDIAL LAW
party and all damages which he may sustain by
reason of the attachment, if the court shall
finally adjudge that the applicant was not
entitled thereto. (Sec. 4, Rule 57)
5. MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY; WHEN PROPERTY
ATTACHED IS CLAIMED BY THIRD
PERSON
The affidavit and the bond must be duly filed with
the court before the writ of attachment issues.
(Sec. 3, Rule 57)
Manner of Attaching Property
The sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to await
judgment and execution in the action, such
property:
1. Only so much of the property sufficient to
satisfy the applicant’s demand;
2. That which is found in the Philippines;
3. That which belongs to the party against whom
the writ is issued; and
4. That which is not exempt from execution. (Sec.
5, Rule 57).
4. RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS
General Rule: No levy on attachment pursuant to
the writ issued under Section 2, Rule 57 shall be
enforced unless preceded, or contemporaneously
accompanied by service upon the defendant within
the Philippines of the following:
1. Summons;
2. A copy of the complaint;
3. The application for attachment;
4. The applicant’s affidavit and bond; and
5. The order and writ of attachment. (Sec. 5, Rule
57; Davao Light and Power Co., Inc. v. CA,
G.R. No. 147058, 2006)
Exceptions: Prior or contemporaneous service of
summons shall not apply when:
a. Summons could not be served personally or by
substituted service despite diligent efforts;
b. Defendant is a resident of the Philippines
temporarily absent therefrom;
c. Defendant is a non-resident of the Philippines;
or
d. The action is one in rem or quasi in rem. (Sec.
5, Rule 57).
Note: In exceptions 1 to 3, the principal action may
be an action in personam. If the court issues a writ
of preliminary attachment, it converts the action in
personam into an action quasi in rem.
Recall: In actions in rem and quasi in rem,
jurisdiction over the person of the defendant is not
required. What is required is jurisdiction over the
res although summons must also be served on the
defendant in order to satisfy due process
requirements. (See De Pedro v. Romasan Dev’t,
G.R. No. 194751, 2014)
PROCEDURE FOR ATTACHMENT OF REAL
AND PERSONAL PROPERTY
Kinds of Real Property Covered
Real property, or growing crops thereon, or any
interest therein which is:
a. Standing upon the record of the registry of
deeds of the province in the name of the party
against whom attachment is issued; or
b. Not appearing at all upon such records; or
c. Belonging to the party against whom
attachment is issued and held by any other
person; or
d. Standing on the records of the registry of deeds
in the name of any other person. (Sec. 7(a),
Ryle 57).
Procedure for Attachment of Real Property
Real property is attached by:
1. Filing with the registry of deeds:
i. A copy of the order;
ii. A description of the property attached; and
iii. A notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached; and
2. 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. (Id.)
Where the property has been brought under the
operation of either the Land Registration Act or the
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Property Registration Decree, the notice shall
contain a reference to:
1. The number of the certificate of title;
2. The volume and page in the registration book
where the certificate is registered; and
3. The registered owner or owners thereof. (Id.)
Note: The registrar of deeds must index
attachments filed under this section in the names
of the applicant, the adverse party, or the person
by whom the property is held or in whose name it
stands in the records. (Id.)
If the attachment is not claimed on the entire area
covered by the certificate of title, a description
sufficiently accurate for the identification of the
land or interest to be affected shall be included in
the registration of such attachment. (Id.)
Attachment of Personal Property Capable of
Manual Delivery
Attachment shall be made by taking and safely
keeping it in his custody, after issuing the
corresponding receipt therefor. (Sec. 7(b), Rule
57).
Attachment of Stocks or Shares
Attachment shall be made by leaving with the
president or managing agent thereof:
1. A copy of the writ; AND
2. A notice stating that the stock or interest of the
party against whom the attachment is issued,
is attached pursuant to the writ. (Sec. 7[c], Rule
57).
Attachment of Debts and Credits, Bank
Deposits,
Financial
Interest,
Royalties,
Commissions, and Other Personal Property
Not Capable of Manual Delivery
Attachment shall be made by leaving with the
person owing such debts, or having in his
possession or under his control, such credits or
other personal property, or with his agent, a copy
of the writ, and notice that the debts owing by him
to the party against whom attachment is issued,
and the credits and other personal property in his
possession, or under his control, belonging to said
party, are attached in pursuance of such writ. (Sec.
7(d), Rule 57).
REMEDIAL LAW
Attachment of Interest of the Party Against
Whom Attachment is Issued in Property
Belonging to the Estate of the Decedent,
Whether as Heir, Legatee, or Devisee
Attachment is made by serving the executor or
administrator or other personal representative of
the decedent with a copy of the writ and notice that
said interest is attached. (Sec. 7(e), Rule 57).
A copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the
court in which said estate is being settled and
served upon the heir, legatee, or devisee
concerned. (Id.).
Attachment of Property in Custodia Legis
If the property sought to be attached is in custodia
legis, a copy of the writ of attachment shall be filed
with the proper court or quasi-judicial agency, and
notice of the attachment served upon the
custodian of such property. (Sec. 7, Rule 57).
Property legally attached is property in custodia
legis and cannot be interfered without the
permission of the proper court, but this is confined
to cases where the defendant has proprietary
interest. Otherwise, the attachment will be void.
(Traders Royal Bank v. IAC, G.R. No. L-66321,
1984)
Effect of Attachment of Debts, Credits, Similar
Personal Property
Those who have in their possession or control any
credits or other similar personal property which
belongs to the party against whom the attachment
is issued, or owing any debts to him, shall be liable
to the applicant for the amount of such credits,
debts or other similar property. (Sec. 8, Rule 57).
Such liability shall accrue from the time of service
upon him of the copy of the writ of attachment and
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. (Id.).
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Effect of Attachment of Interests in Property
Belonging to the Estate of a Decedent
The attachment of the interest of an heir, legatee,
or devisee in the property belonging to the estate
of a decedent shall NOT impair the powers of the
executor, administrator, or other personal
representative of the decedent over such property
for the purpose of administration. (Sec. 9, Rule
57).
Such personal representative, however, shall
report the attachment to the court when any
petition for distribution is filed, and in the order
made upon such petition, distribution may be
awarded to such heir, legatee or devisee, but the
property attached shall be ordered delivered to the
sheriff making the levy, subject to the claim of such
heir, legatee, or devisee, or any person claiming
under him. (Id.).
It is not necessary to serve summons upon the
garnishee to acquire jurisdiction upon him. All that
is required is service upon him of the writ of
garnishment. (Perla Compania de Seguros v.
Ramolete, G.R. No. L-60887, 1991)
Examination of Party Whose Property is
Attached and Persons Indebted to Him or
Controlling His Property
Any person owing debts to the party whose
property is attached or having in his possession or
under his control any credit or other personal
property belonging to such party, may:
a. Be required to attend before the court in which
the action is pending, or before a commissioner
appointed by the court, and be examined on
oath; or
b. Be required to attend for the purpose of giving
information respecting his property, and may
be examined on oath. (Sec. 10, Rule 57).
The court may, after such examination, order
personal property capable of manual delivery
belonging to him, in the possession of the person
so required to attend before the court, to be
delivered to the clerk of the court or sheriff on such
terms as may be just, having reference to any lien
thereon or claim against the same, to await the
judgment in the action. (Id.).
When Attached Property May be Sold
REMEDIAL LAW
The attached property may be sold by order of the
court whenever it shall be made to appear that:
a. The property is perishable, or
b. The interests of all the parties to the action will
be subserved by the sale thereof. (Sec. 11,
Rule 57).
The court may order such property to be sold at a
public auction in such manner as it may direct,
and the proceeds of such sale to be deposited in
court to abide the judgment in the action. (Id.).
Such order to sell shall be made:
1. By the court where the action is pending; and
2. Upon notice and hearing to both parties. (Id.).
Remedies of the Third Person Claiming a
Property Subject of a Writ of Attachment
a. File a terceria by executing an affidavit of his
title or right of possession over the property
levied on attachment and serving the same to
the office making the levy and the adverse
party or third party claim (Sec. 16, Rule 39;
Sec. 14, Rule 57);
b. A writ of replevin (Sec. 7, Rule 60);
c. Motion for summary hearing on his claim for the
purpose of determining whether the sheriff has
acted rightly or wrongly in the performance of
his duties in the execution of the writ of
attachment, more specifically if he has indeed
levied on attachment and taken hold of
property not belonging to the plaintiff;
d. File a separate action to nullify the levy with
damages resulting from the unlawful levy and
seizure.
The remedies are CUMULATIVE and any one of
them may be resorted to without availing of the
other remedies. (Ching v. CA, G.R. No. 124642,
2004).
Note: In that in item no. 3 above, it does not refer
to intervention under the Rules of Court. It is rather
simply an invocation of the Court's power of
supervision and control over the actuations of its
officers and employees to the end that it be
assured that these conform to the law. (Ong v.
Tating, G.R. No. L-61042, 1987).
In resolving the motion of the third party, the court
does not and cannot pass upon the question of the
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title to the property with any character of finality. It
can treat the matter only insofar as may be
necessary to decide if the sheriff has acted
correctly or not. If the claimant’s proof does not
persuade the court of the validity of the title, or right
of possession thereto, the claim will be denied by
the court. (Ching v. CA, G.R. No. 124642, 2004)
Nevertheless, nothing herein contained shall
prevent such claimant or any third person from
vindicating his claim to the property, or prevent the
attaching party from claiming damages against a
third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
(Id.)
Terceria
A stranger to the action, i.e., a person not a party
to the action, whose property is seized pursuant to
the writ of delivery (attachment), is accorded the
remedy known as a terceria, a third party claim.
(La Tondeña Distillers, Inc. v. Court of Appeals,
G.R. No. 88938, 1992)
Exemption from Bond Requirement in Terceria
When the writ of attachment is issued in favor of
the Republic of the Philippines, or any officer duly
representing it, the filing of the aforementioned
bond shall not be required. (Id.)
Under the remedy of terceria, the sheriff shall not
be bound to keep the property under attachment if
the property attached is being claimed by any
person, other than whom the attachment, or his
was issued against and such person:
1. Makes an affidavit of his title thereto or right of
possession thereof;
2. The affidavit states the grounds of the right or
title;
3. Such affidavit is served upon the sheriff while
he is still in possession of the attached
property; and
4. A copy of the affidavit is served upon the
attaching party. (Sec. 14, Rule 57)
However, the sheriff shall be bound to keep the
property if the attaching party or his agent shall file
a bond, on demand of the sheriff and approved by
the court, to indemnify the third-party claimant.
The value of the bond shall not be less than the
value of the property levied upon. In case of
disagreement as to such value, the same shall be
decided by the court issuing the writ of attachment.
(Id.)
The sheriff shall not be liable for damages for the
taking or keeping of such property, to any such
third-party claimant, if the aforementioned bond
shall be filed. (Id.)
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. (Id.)
In case the sheriff is sued for damages as a result
of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the
actual damages adjudged by the court shall be
paid by the National Treasurer out of the funds to
be appropriated for the purpose. (Sec. 14, Rule
57)
6. DISCHARGE OF ATTACHMENT AND THE
COUNTER-BOND
Grounds to Discharge Preliminary Attachment
Preliminary attachment shall be discharged when
it is established that any of the following grounds
exist:
a. The debtor has posted a counterbond or has
made the requisite cash deposit (Sec. 12, Rule
57)
b. The attachment was improperly or irregularly
issued as where there is no ground for
attachment under Section 1 of this Rule (Sec.
13, Rule 57);
c. The bond filed is defective or insufficient (Sec.
13, Rule 57);
d. The attachment is excessive, but the discharge
shall be limited to the excess (Sec. 13, Rule
57);
e. The property attached is exempt from
execution, hence exempt from preliminary
attachment (Secs. 2 & 5, Rule 57); or
f. The judgment is rendered against the attaching
creditor. (Sec. 19, Rule 57)
Note: Attachment is IRREGULAR when any of the
six (6) grounds for attachment are present but
attachment was not made according to the rules.
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When the preliminary attachment is issued upon a
ground which is at the same time the central issue
of applicant's cause of action, the defendant is not
allowed to file a motion to dissolve the attachment
under Section 13 of Rule 57 by offering to show
the falsity of the factual averments in the plaintiffs
application and affidavits on which the writ was
based - and consequently that the writ based
thereon had been improperly or irregularly issued
- the reason being that the hearing on such a
motion for dissolution of the writ would be
tantamount to a trial of the merits of the action.
(Watercraft Venture v. Wolfe, G.R. No. 181721,
2015)
When Counterbond is Filed
i. Before enforcement of the writ (Sec. 2, Rule
57);
ii. During enforcement of the writ (Sec. 5, Rule
57);
iii. After enforcement of the writ. (Sec. 12, Rule 57)
Note: In case of item 3 above, the moving party
may either file a counterbond or make a cash
deposit. (Id.)
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under the
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching party,
and after satisfying the judgment the balance shall
be refunded to the depositor or his assignee. (Sec.
18, Rule 57).
If the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. (Id.).
Counterbond is Discharged Either:
a. Wholly when there is full satisfaction of the
judgment or court finally absolved surety; or
b. In part with the security given. (Sec. 12, Rule
57)
Distinction
between
Attachment Bond
ATTACHMENT/
APPLICANT’S BOND
Counterbond
and
COUNTERBOND
Purpose
Purpose of Counterbond
The purpose of a counterbond is to secure the
payment of any judgment that the attaching party
may recover in the action. (Secs. 12 and 17, Rule
57)
Notice and Hearing
Discharge is not automatic. There must be due
notice served on the attaching party and hearing
and an order issued by the court. Should it involve
a cash deposit, a notice of the deposit shall
likewise be served on the attaching party. (Sec.
12, Rule 57).
To pay all the costs
which may be adjudged
to the adverse party
and all damages which
he may sustain by
reason
of
the
attachment, if the court
shall finally adjudge
that the applicant was
not entitled thereto.
(Secs. 4 and 12, Rule
57)
To secure the payment
of any judgment that
the attaching party may
recover in the action.
(Secs. 12 and 17, Rule
57)
When Discharged
Amount of the Counterbond or Cash Deposit
It shall be in an amount, exclusive of cost, equal
to:
a. That fixed by the court in the order of
attachment, exclusive of costs; or
b. The value of the particular property, if the
attachment sought to be discharged is with
respect to a particular property, as determined
by the court. (Secs. 2 and 12, Rule 57)
Not discharged even if
attachment discharged,
since damage may be
adjudged by the court
to
the
adverse
party/defendant.
(Uy
Kimpang v. Javier,
G.R. No. L-43461, Dec.
16, 1937)
Not discharged until full
satisfaction or Court
finally absolved surety
even if case dismissed
and
reinstated
or
attachment
is
wrongfully issued. (Id.)
Cash Deposit
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Claimed
Claim only after due
notice to the surety and
proper hearing and
ruling shall be included
in the judgment on the
main case.
Notice to surety and
summary hearing; after
which,
the
surety
becomes charged and
liable to the judgment
obligee.
Who Files
Applicant
files
the Adverse party files the
bond. (Sec. 3, Rule 57). counterbond. (Sec. 12,
Rule 57).
Procedure for Discharge of Writ of Attachment
Upon Giving Counterbond
1. The party whose property has been attached,
or the person appearing on this behalf may file
a motion to discharge the attachment
2. Such party may either:
a. Give cash deposit with the court from which
the writ was issued; or
b. Give a counter-bound executed to the
attaching party.
3. Notice of deposit shall be served on the
attaching party
4. After notice and hearing, the court shall order
discharge of the attachment. (Sec. 12, Rule 57)
Filing of a Counterbond Not a Waiver to Claim
Damages Under the Attachment Bond
The filing of a counter-bond does not relieve
applicant’s attachment bond’s liability for
damages. Liability attaches if the plaintiff is not
entitled to the attachment because the
requirements entitling him to the writ are wanting,
or if the plaintiff has no right to the attachment
because the facts stated in his affidavit, or some
of them are untrue. (Calderon v IAC, G.R. No.
74696, 1987)
The attachment debtor cannot be deemed to have
waived any defect in the issuance of the
attachment writ by simply availing himself of one
way of discharging the attachment writ, instead of
the other. (Id.).
Counterbond Cannot be Cancelled on the
Ground That Writ is Improperly Issued
REMEDIAL LAW
Obligors in the bond are absolutely liable for the
amount of any judgment that the plaintiff may
recover in the action without reference to the
question of whether the attachment was rightfully
or wrongfully issued. The same rule applies to the
plaintiff’s attachment bond. (Uy Kimpang v. Javier,
G.R. No. L-43461, 1937)
The liability of the surety on the counterbond
subsists until the Court shall have finally
absolved the defendant from the plaintiff’s
claims. The liability of the surety on the bond
subsists because the final reckoning is when the
Court shall finally adjudge that the attaching
creditor was not entitled to the issuance of the
attachment writ. (Mindanao Savings and Loan
Assoc. vs. CA, G.R. No. 84481, 1989)
Discharge of An Attachment Improperly or
Irregularly Issued or Enforced or Attachment
Bond is Insufficient
How to obtain discharge: Motion and hearing is
necessary (Secs. 12 & 13, Rule 57)
When filed: Before or after levy or after release of
attached property. (Sec.13, Rule 57)
Burden of proof: The attaching creditor must show
that the writ was properly issued. (Filinvest Credit
Corp. v. Relova, G.R. No. L-50378, 1982).
When Discharge Due to Improper Issuance is
Not Available
When the ground for the issuance of the writ forms
the core of the complaint, the writ cannot be
discharged until after trial on the merits. This is
because the court cannot allow the litigation of the
main issue of the case prior to trial. (Liberty
Insurance Corp. v CA, G.R. No. 104405, 1993)
Once the writ of attachment is lifted due to the
posting of a counterbond, the adverse party may
no longer file a motion to lift the attachment on the
ground that it was improperly or irregularly issued,
since there is no longer anything to lift. (Mindanao
Savings & Loan Association v. Mercado, G.R. No.
84481, 1989)
HOWEVER, this does not mean that the adverse
party has waived all irregularity or impropriety in
the issuance of the writ FOR PURPOSES OF
CLAIMING DAMAGES. (Calderon v IAC, G.R. No.
74696, 1987).
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Damages Recoverable by the Attachment
Defendant
Where there is wrongful attachment, the
attachment defendant may recover actual
damages even without proof that the attachment
plaintiff acted in bad faith in obtaining the
attachment. However, if it is alleged and
established that the attachment was not merely
wrongful but also malicious, the attachment
defendant may recover moral damages and
exemplary damages as well. (Spouses Yu v. Ngo
Yet Te, G.R. No. 155868, 2007).
Either way, the wrongfulness of the attachment
does not warrant the automatic award of damages
to the attachment defendant; the latter must first
discharge the burden of proving the nature and
extent of the loss or injury incurred by reason of
the wrongful attachment. (Id.).
The Liability of The Attaching Party Not
Limited to The Amount of Attachment Bond
Should the bond or deposit given by the attaching
party be insufficient or fails to fully satisfy the
award, the party against whom attachment was
issued is not prevented from recovering in the
same action the damages awarded to him from
any property of the attaching party not exempt
from execution. (Sec. 20, Rule 57).
However, the judgment award should be first
executed on the attachment bond. Only if the
attachment bond is insufficient to cover the
judgment award can the attaching party be held
liable. (Phil-Air Conditioning Center v. RCJ Lines,
G.R. No. 193821, 2015).
However, the surety’s liability is limited to the
amount of the bond. (Philippine Charter Insurance
Corp. v. Court of Appeals, G.R. No. 88379, 1989).
Discharge Due to Excessive Attachment
The attachment may also be discharged if the
same is excessive, but the discharge shall be
limited to the excess. (Sec. 13, Rule 57).
However, the whole attachment may be
discharged if the same is excessive and such
defect is not cured despite the court’s order. (Id.).
REMEDIAL LAW
The party seeking the discharge must also file a
motion in the court where the action is pending,
and due notice and hearing shall also be
observed. (Id).
7. SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED
Satisfaction of Judgment by Sheriff
If judgment be recovered by the attaching party
and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the
property attached, if it be sufficient for that purpose
in the following manner:
1. By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of the
court, necessary to satisfy the judgment;
2. If any balance remains due, by selling so much
of the property, real or personal, as may be
necessary to satisfy the balance;
3. By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time
of the attachment of such credits or debts, the
amount of such credits and debts as
determined by the court in the action, and
stated in the judgment, and paying the
proceeds of such collection over to the
judgment obligee. (Sec. 15, Rule 57)
Sheriff’s Return
The sheriff, after paying the obligee, shall make a
return in writing to the court of his proceedings and
furnish the parties with copies thereof. (Id.).
Balance and Excess
If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment any balance shall
remain due, the sheriff must proceed to collect
such balance as upon ordinary execution.
(Sec. 16, Rule 57).
The sheriff, upon reasonable demand, must return
to the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment. (Id.).
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Recovery Upon the Counterbond
In order that the judgment creditor may recover
from the Surety on the counterbond, it is
necessary:
1. That judgment has become executory (Sec. 17,
Rule 57) or that execution be first issued
against the principal debtor and that such
execution was returned unsatisfied in whole
or in part; (Towers Assurance v. Ororama
Supermart, G.R. No. L-45848, 1977)
2. That the creditor made a demand upon the
surety for the satisfaction of the judgment; and
3. The surety be given notice and a summary
hearing in the same action as to his liability for
the judgment under his counterbond. (Sec. 17,
Rule 57).
Note: The first requisite is not applicable where
a solidary liability for the satisfaction of a
judgment is involved. The surety is not entitled to
the exhaustion of properties of the principal debtor.
(Towers Assurance v. Ororama Supermart, G.R.
No. L-45848, 1977).
8. COMPARED WITH GARNISHMENT AND
LEVY ON EXECUTION
Table of Comparison: Preliminary Attachment, Levy, and Garnishment
PRELIMINARY
LEVY ON EXECUTION
ATTACHMENT
BASIS
Rule 57
Rule 39, Section 9 (b)
NATURE
Provisional and ancillary
remedy.
Means of execution of
money judgment.
DEFINITION
Applied for and may be
issued
at
the
commencement of the
action or at any time
before entry of judgment,
to have the property of
the adverse party taken
into the custody of the
court as security for the
satisfaction
of
any
judgment that may be
recovered.
Available
after
the
judgment has become
executory by which the
property
of
the
judgment debtor is
taken into custody of the
court before the sale of
the
property
on
execution
for
the
satisfaction of a final
judgment.
GARNISHMENT
Rule 57, Section 7 (c)
and (d); Rule 39,
Section 9 (c)
A
species
of
attachment.
A specie of attachment
in which the attaching
party seeks to subject to
his claim either the
property of the adverse
party, in the hands of a
third person called the
garnishee, or the money
which said third person
owes the adverse party.
A forced novation by the
substitution of creditors.
The
judgment
debtor/defendant, who
is the original creditor of
the
garnishee
is,
through service of a writ
of
garnishment,
substituted
by
the
judgment
creditor/plaintiff
who
thereby becomes the
creditor
of
the
garnishee.
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PURPOSE
1. To seize the property
of the debtor in
advance
of
final
judgment and to hold
it for purposes of
satisfying
said
judgment; and
2. To
acquire
jurisdiction over the
action by actual or
constructive seizure
of the property in
those
instances
where personal or
submitted service on
the defendant cannot
be effected.
SUBJECT MATTER
Real
or
personal
property of the adverse
party.
PROPERTIES
EXEMPTED
1.
2.
3.
4.
5.
6.
A means of executing a
money judgment where
if the judgment obligor
cannot pay all or part of
the obligation in cash,
certified bank check, or
other mode of payment
acceptable
to
the
judgment obligee, the
officer shall levy upon
the properties of the
judgment obligor of
every kind and nature
whatsoever which may
be disposed of for value
and
not
otherwise
exempt from execution
giving the latter the
option to immediately
choose which property
or part thereof may be
levied upon, sufficient to
satisfy the judgment.
Any available property
of the adverse party.
To
reach
credits
belonging
to
the
judgment debtor until
the plaintiff can obtain a
judgment and have
such property applied to
its satisfaction.
Money,
stocks
or
shares, an interest in
stocks or shares of any
corporation
or
company, debts and
credits, bank deposits,
financial
interest,
royalties, commissions
and other personal
property not capable of
manual
delivery
in
possession or control of
third parties.
The judgment obligor's family home as provided by law, or the homestead
in which he resides, and land necessarily used in connection therewith;
Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
His necessary clothing and articles for ordinary personal use, excluding
jewelry;
Household furniture and utensils necessary for housekeeping, and used
for that purpose by the judgment obligor and his family, such as the
judgment obligor may select, of a value not exceeding one hundred
thousand pesos;
Provisions for individual or family use sufficient for four months;
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7. The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three thousand pesos in value;
8. One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
9. So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are
necessary for the support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
12. The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
13. Properties specially exempted by law. (Sec. 13, Rule 39)
1. The case must be 1. The sheriff shall 1. The sheriff will
any of those where
demand payment of
serve the writ and a
preliminary
money
judgment
notice upon the
attachment
is
either
in
cash,
person owing such
proper;
certified
bank
debts (garnishee)
2. The applicant must
check, or any other
or having in his
file a motion;
mode of payment
possession
or
3. The applicant must
that is acceptable to
control such credits;
show by affidavit that
the
judgment 2. The garnishee shall
there is no sufficient
obligee;
make a written
security for the claim 2. If the judgment
report to the court
sought
to
be
obligor cannot pay
within 5 days from
enforced; that the
by these methods,
service
of
the
amount claimed in
he can exercise his
notice,
stating
the action is as much
option to choose
whether or not the
as the sum of which
which
among
judgment
obligor
the order is granted
personal properties
has sufficient funds
above
all
can be levied upon;
or credits; and
counterclaims;
3. If he does not 3. The
garnished
4. The applicant must
exercise this option,
amount shall be
post
a
bond
he waives such
delivered directly to
executed to the
right and the sheriff
the judgment oblige
adverse
party
can now first levy
within 10 days from
(attachment bond).
his
personal
service of notice.
properties, if any,
and then the real
properties if the
personal properties
are insufficient to
satisfy
the
judgment;
4. The
sheriff
is
mandated to file
with the Register of
Deeds a copy of the
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WHICH COURT MAY
GRANT
1. Court where action is
pending;
2. The CA, on appeal,
even if action is
pending in the lower
court; or
3. The SC, on appeal,
even if action is
pending in the lower
court.
BOND
REQUIREMENT
Bond executed to the
adverse party in the
amount fixed by the court
to cover the costs which
may be adjudged to the
adverse party and all
damages which he may
sustain by reason of the
granting of provisional
remedy prayed for, if the
court
shall
finally
adjudge
that
the
applicant
was
not
entitled thereto.
The grant is addressed
to judicial discretion.
GRANT
order, description of
the
attached
property, and notice
of attachment; and
5. Leave with the
occupant of the
property copy of the
same
order,
description,
and
notice
1. Court of origin, when
case
is
finally
resolved therein or in
case of discretionary
execution, while it
has jurisdiction over
the case and is in
possession of the
original record or
record on appeal;
2. Appellate
court,
when appeal is duly
perfected and finally
resolved, or in case
of
discretionary
execution, after the
trial court has lost
jurisdiction
and
possession of the
original record or
record on appeal.
No bond required.
The grant is a matter of
right,
unless
discretionary execution
is sought, which is
1. If used as mode of
preliminary
attachment, either
the court where
action is pending,
the CA or the SC on
appeal even if action
is pending in the
lower court; or
2. If used as mode of
executing
a
judgment, either the
court of origin or the
appellate court, as
the case may be.
1. If used as mode of
preliminary
attachment,
then
applicant bond is
required;
2. If used as mode of
executing
a
judgment, no bond is
required.
1. If used as mode of
preliminary
attachment,
then
grant is addressed to
judicial discretion;
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subject
to
discretion.
judicial
2. If used as mode of
executing
a
judgment, grant is a
matter
of
right,
unless discretionary
execution is sought,
which is subject to
judicial discretion.
x
D. PRELIMINARY INJUNCTION
1. DEFINITIONS AND DIFFERENCES:
PRELIMINARY INJUNCTION AND
TEMPORARY RESTRAINING ORDER (TRO),
AND STATUS QUO ANTE ORDER
Preliminary Injunction
It is an order granted at any stage of an action or
proceeding before the judgment or final order,
requiring a party or a court, agency or person to:
1. Refrain from a particular act or acts (prohibitory
injunction); or
2. Perform a particular act or acts (mandatory
injunction). (Sec. 1, Rule 58; Dungog v. CA, G.R.
Nos. 77850-51, 1988)
A preliminary injunction is a preventive remedy
whose only mission is to prevent threatened
wrong, further injury, and irreparable harm or
injustice until the rights of the parties can be
settled. (Nerwin Industries Corp v. PNOC-Energy
Dev’t Corp., G.R. No. 167057, 2012)
A preliminary mandatory injunction is more
cautiously regarded than a mere prohibitive
injunction since, more than its function of
preserving the status quo between the parties, it
also commands the performance of an act. Thus,
the issuance of a writ of preliminary mandatory
injunction is justified only in a clear case, free from
doubt or dispute. (Ngo v Allied Banking Corp, G.R.
No. 177420, 2010)
Preservation of Status Quo – Purpose of
Injunctive Writ
The status quo is the last, actual, peaceful, and
uncontested situation (which precedes a
controversy, and its preservation is the office of an
injunctive writ. (Pineda v. CA, G.R. No. 181643,
Nov. 17, 2010) It usually refers to the status of the
parties immediately before the filing of the
complaint.
Injunction is resorted to only when there is a
pressing
necessity
to
avoid
injurious
consequences which cannot be remedied under
any standard compensation. The sole objective of
a writ of preliminary injunction is to preserve the
status quo until the merits of the case can be heard
fully. (Unilever v CA, G.R. No. 119280, 2006)
Persons Bound by Writ; Relations Created
A preliminary injunction is merely a provisional
remedy, an adjunct to a main suit; hence, a person
who is not a party in the main suit cannot be bound
by the writ. (Mabayo Farms v. CA, G.R. No.
140058, 2002)
A preliminary injunction should not establish new
relations between the parties but merely maintain
or re-establish the pre-existing relationship
between them. (Bustamante v. CA, G.R. No.
126371, 2002)
Temporary Restraining Order (TRO)
It is a temporary or provisional order to maintain
the subject of controversy in status quo until the
hearing of an application for a preliminary
injunction. (Incorporators of the Mindanao Institute
v. United Church, G.R. No. 171765, 2012)
The court to which the application for preliminary
injunction was made may issue a TRO, effective
for 20 days from notice to the party or person
sought to be enjoined, if it shall appear from facts
shown by affidavits or by the verified application
that great or irreparable injury would result to the
applicant before the matter can be heard on
notice. (Sec. 5, Rule 58).
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A TRO has a definite life span of 20 days. It is
automatically dissolved upon the lapse of 20 days.
(REGALADO, 2008 ed.)
A Writ of Preliminary Injunction has an indefinite
life – it is valid until final judgment or while the
action is pending. (Spouses Carpo v. Chua, G.R.
Nos. 150773 & 153599, 2005)
TRO v. Injunction
TRO
May be granted ex
parte if great and
irreparable
injury
would
result
otherwise.
72 hours or maximum
20 days (RTC), 60
days (CA) or until
further orders (SC).
INJUNCTION
Cannot be granted
without notice and
hearing.
In force while the
action is pending.
Status Quo Ante Order
Status quo ante is a Latin term for "the way things
were before." When an order of this nature is
imposed, it is to maintain the state of things
existing before the controversy. (ABS-CBN Corp.
v. National Telecommunications Commission,
G.R. No. 252119, 2020)
It is an interlocutory order. (Dimayuga v.
COMELEC, G.R. No. 174763, April 24, 2007)
The Rules of Court do not sanction the issuance
of a status quo ante order (SQAO). But in cases
where the SQAO is issued by a court or agency
other than the Supreme Court, the SQAO is
deemed to have the “nature of a temporary
restraining order,” and thus must comply with the
requisites for a TRO in applicable cases. Thus, it
cannot exceed the 20-day term and cannot be
“indefinite.” Procedural requirements of hearing
and notice must also be complied with. (See Repol
v. Comelec, G.R. 161418, Apr. 28, 2004; Llamzon
v. PEZA Board of Inquiry, G.R. 167445, Jun. 26,
2007)
The Supreme Court, in jurisprudence, may issue
SQAOs without restriction. The Supreme Court
has issued a status quo order which, as the very
REMEDIAL LAW
term connotes, is merely intended to maintain the
last, actual, peaceable and uncontested state of
things which preceded the controversy. This was
resorted to when the projected proceedings in the
case made the conservation of the status quo
desirable or essential, but the affected party
neither sought such relief nor did the allegations in
his pleading sufficiently make out a case for a
temporary restraining order.
The status quo order was thus issued motu proprio
or on equitable considerations. Unlike a temporary
restraining order or a preliminary injunction, a
status quo order is more in the nature of a cease
and desist order, since it does not direct the doing
or undoing of acts as in the case of a prohibitory or
mandatory injunctive relief. The further distinction
is provided by the present amendment in the
sense that, unlike the amended rule on restraining
orders, a status quo order does not require the
posting of a bond. (Regalado, Remedial Law
Compendium Vol. I, 734-35)
COMELEC may issue a status quo ante order.
(Dimayuga v. COMELEC, G.R. No. 174763, 2007)
Action for Injunction v. Writ of Preliminary
Injunction
The main action for injunction is distinct from the
provisional or ancillary remedy of preliminary
injunction which cannot exist except only as part
or an incident of an independent action or
proceeding. In an action for injunction, the auxiliary
remedy of preliminary of injunction, whether
prohibitory or mandatory, may issue. (Urbanes v.
CA, G.R. No. 117964, 2001)
The main action for injunction seeks a judgment
embodying a final injunction, which is distinct from,
and should not be confused with, the provisional
remedy of preliminary injunction, the sole object of
which is to preserve the status quo until the merits
are heard. (Id.).
Who May Grant Preliminary Injunction
A preliminary injunction may be granted by the
court where the action or proceeding is pending. If
the action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued
by said court or any member thereof. (Sec. 2, Rule
58).
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Municipal Trial Courts (MTC/MeTC/MCTC)
i. A possessor deprived of his possession
through forcible entry may within ten days from
the filing of the complaint present a motion to
secure from the competent court, in the action
for forcible entry, a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within thirty (30) days from the filing thereof.
(Art. 539, Civil Code);
ii. In ejectment cases where an appeal is taken,
the remedy granted in Article 539, second
paragraph, shall also apply, if the higher court
is satisfied that the lessee’s appeal is frivolous
or dilatory, or that the lessor’s appeal is prima
facie meritorious. The period of ten days
referred to in said article shall be counted from
the time the appeal is perfected. (Art. 1674,
Civil Code);
iii. A possessor deprived of his possession
through forcible entry or unlawful detainer from
the filing of the complaint, present a motion in
the action for forcible entry or unlawful detainer
for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within thirty (30) days from the filing thereof.
(Sec. 15, Rule 70);
iv. Provided the main action is within its
jurisdiction, an inferior court can appoint a
receiver and it has jurisdiction to issue a writ of
preliminary injunction in either forcible entry or
unlawful detainer cases. (Day vs. RTC of
Zamboanga City, G.R. No. 79119, 1990, citing
Regalado, Remedial Law Compendium,
Second Revised Edition, p. 33)
Judicial Interference in Preliminary Injunction
General Rule: Under the doctrine of judicial
stability or non-interference, no court has the
power to interfere by injunction with the judgments
or decrees of a court of concurrent or coordinate
jurisdiction. (Dy Chiao v. Bolivar, G.R. No. 192491,
2016).
Exception: A judge in charge of a branch of a trial
court has jurisdiction to issue a preliminary
injunction in a case pending in that branch
notwithstanding the fact that a similar injunction
had been denied by another judge in another
branch of the court, and in the absence of gross
abuse of discretion, the injunction granted will not
be interfered with by certiorari. (Sabado v. Cristina
Gonzalez, Inc., G.R. No. 28890, 1928)
The denial of a petition for a preliminary injunction
is not a final determination of the matter and is no
obstacle to the subsequent granting of a renewed
petition for the issuance of such injunction upon
further information and consideration. (Id.).
Regional Trial Courts (RTC)
For Regional Trial Courts, the issuance of a writ of
injunction is only enforceable within their
respective regions. (Sec. 21, B.P. 129).
The RTC has no authority to restrain or enjoin acts
being perpetrated or to be perpetrated outside the
territorial boundaries of its region. (Acosta vs.
Alvendia, G.R. No. L-14598, 1960)
Where the main action is the annulment of the
action of the respondent and injunction is merely
corollary, the trial court of locality where
questioned act is to be implemented has
jurisdiction. (Feria 2013, citing Decano vs. Edu, 99
G.R. No. L-30070, 1980)
2. REQUISITES
Requisites for the Issuance of the Writ of
Preliminary Injunction
A writ of preliminary injunction is issued upon the
applicant’s showing of two important requisite
conditions:
1. The right to be protected exists prima facie; and
2. The acts sought to be enjoined are violative of
that right. (Bicol Medical Center v. Botor, G.R.
No. 214073, 2017)
What Must be Proven for a Writ of Preliminary
Injunction to Issue
The following requisites must be proved before a
writ of preliminary injunction, be it mandatory or
prohibitory, will issue:
1. The applicant must have a clear and
unmistakable right to be protected, that is a
right in esse;
2. There is a material and substantial invasion of
such right;
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3. There is an urgent need for the writ to prevent
irreparable injury to the applicant; and
4. No other ordinary, speedy, and adequate
remedy exists to prevent the infliction of
irreparable injury. (Municipality of Famy,
Laguna v. Municipality of Siniloan, Laguna,
G.R. No. 203806, 2020)
The Rules require that the applicant's right must
be a right in esse, that which is, clear or
unmistakable, actual, and positive especially
calling for judicial protection. (Id.).
Clear and Unmistakable Right
One clearly founded in or granted by law or is
enforceable as a matter of law. (Australian
Professional Realty v. Municipality of Padre
Garcia, G.R. No. 183367, 2012)
While a clear showing of the plaintiff’s right is
necessary, its existence need not be conclusively
established. The evidence need not be complete
but merely a ‘sampling’ intended merely toggle the
court an idea of the justification for the preliminary
injunction, pending the decision of the case on the
merits. Thus, the plaintiff is only required to show
that it has the ostensible right to the final relief
prayed for in the complaint.” (Los Banos Rural
Bank v. Africa, G.R. No. 143994, 2002)
Irreparable Injury
Injury is considered irreparable if it is of such
constant and frequent recurrence that no fair or
reasonable redress can be had therefore in court
or law or where there is no standard by which their
amount can be measured with reasonable
accuracy. (Social Security Commission v. Bayona,
G.R. No. L-13555, 1962)
Respondents assert that foreclosure of their
property may cause irreparable damage, thus
justifying the issuance of the writ of preliminary
injunction. The SC held that foreclosure of
mortgaged property is not an irreparable damage
that will merit for the debtor-mortgagor the
extraordinary provisional remedy of preliminary
injunction as “all is not lost for defaulting
mortgagors whose properties were foreclosed by
creditors-mortgagees.” The respondents will not
be deprived outrightly of their property, given the
right of redemption granted to them under the law.
REMEDIAL LAW
Moreover,
in
extrajudicial
foreclosures,
mortgagors have the right to receive any surplus
in the selling price. Thus, if the mortgagee is
retaining more of the proceeds of the sale than he
is entitled to, this fact alone will not affect the
validity of the sale but will give the mortgagor a
cause of action to recover such surplus. (Solid
Builders v. China Banking Corporation, G.R. No.
179665, 2013).
A preliminary injunction is intended to prevent
irreparable injury to the plaintiff, that possibility
should be clearly established, if only provisionally,
to justify the restraint of the act complained
against. The evidence submitted at the hearing on
the motion need not be conclusive and complete.
However, the damage must not be susceptible of
mathematical
computation.
Damages
are
irreparable within the meaning of the rule relative
to the issuance of injunction where there is no
standard by which their amount can be measured
with reasonable accuracy. It does not have
reference to the amount of damages that may be
caused but rather to the difficulty of measuring the
damages inflicted. If full compensation can be
obtained by way of damages, equity will not apply
the remedy of injunction. (Social Security
Commission v. Bayona, G.R. No. L-13555, 1962)
Injury is considered irreparable if it is of such
constant and frequent recurrence that no fair or
reasonable redress can be had therefore in court
or law or where there is no standard by which their
amount can be measured with reasonable
accuracy. (Ollendorff v. Abrahamson, G.R. No.
13228, 1918).
Mere prima facie evidence is needed to establish
the applicant’s rights or interests in the subject
matter of the main action. (Republic v.
Evangelista, G.R. No. 156015, 2005; Lukang vs
Pagbilao Development Corp G.R. No. 195374,
2014)
Procedure For Issuance of Writ of Preliminary
Injunction and TRO
1. A verified application showing facts entitling the
applicant to the relief demanded shall be filed with
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the court where the action is pending. (Sec. 4(a),
Rule 58)
Application must be verified; absence of
verification makes the application or petition
patently insufficient both in form and in substance.
(Rivera v. Mirasol., A.M. No. RTJ-04-1885, 2004)
The Sandiganbayan cannot validly issue a TRO on
the basis of a communication (letter) which is not
verified. (Republic v. Sandiganbayan, G.R. No.
89553, 1993)
2. If the application is included in a complaint or
initiatory pleading filed before a single-sala court,
notice of the application must be served to the
adverse party. If the application is included in a
complaint or initiatory pleading filed before
multiple-sala court, the application shall be raffled
only after notice and in the presence of the
adverse party. (Sec. 4 (c), Rule 58)
No preliminary injunction shall be granted without
hearing and prior notice to the party or person
sought to be enjoined. (Sec. 5, Rule 58)
Notice shall be preceded or contemporaneously
accompanied by service of summons, together
with a copy of the complaint or initiatory pleading
and the applicant’s affidavits upon the adverse
party in the Philippines. But the contemporaneous
service of summons shall not apply when:
a. The summons could not be served personally
or by substituted service despite diligent
efforts;
b. Adverse party is a resident of the Philippines
temporarily absent therefrom; or
c. Adverse party is a non-resident. (Sec. 4(c),
Rule 58)
However, the court may issue a temporary
restraining order (TRO) to be effective only for a
period of 20 days from service on the party or
person sought to be enjoined if great or
irreparable injury would result to the applicant as
shown by affidavits or by the verified petition
before the matter can be heard on notice. (Sec. 5,
Rule 58.).
REMEDIAL LAW
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. (Sec. 4(d), Rule 58)
Within the said 20-day period, the court must order
said party or person to show cause, at a specified
time and place, why the injunction should not be
granted, determine within the same period
whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding
order. (Sec. 5, Rule 58)
Nonetheless, the executive judge of a multiplesala court or the presiding judge of a single-sala
court may issue an ex parte TRO effective for 72
hours from issuance if:
a. The matter is of extreme urgency; and
b. The applicant will suffer grave injustice or
irreparable injury.
Thereafter, the application for TRO shall be acted
upon also after a summary hearing to determine
whether the TRO shall be extended, which must
not exceed 20 days, including the 72 hours initially
provided. (Secs. 4 (d) and 5, Rule 58).
After prior notice, a hearing shall be conducted on
whether the applicant is entitled to the writ of
preliminary
injunction.
Unless
otherwise
exempted, the applicant shall file a bond executed
to the party enjoined in an amount to be fixed by
the court, to the effect that the applicant will pay to
such party or person all damages which he may
sustain by reason of the injunction or temporary
restraining order if the court should finally decide
that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of preliminary
injunction shall be issued. (Sec. 4(b), Rule 58).
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed
automatically vacated. The effectivity of a
temporary restraining order is not extendible
without need of any judicial declaration to that
effect and no court shall have authority to extend
or renew the same on the same ground for which
it was issued. (Sec. 5, Rule 58).
A summary hearing must be conducted in an
application for a TRO which must be held within 24
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Comparison of Procedure for Issuance of Preliminary Injunction, TRO, SQAO
PRELIMINARY INJUNCTION
TEMPORARY RESTRAINING
ORDER
STATUS QUO ANTE ORDER
Purpose
To prevent future injury and To preserve the status quo ante To maintain the status quo ante or
maintain the status quo for the until the hearing of the application the condition prevailing before the
duration of the proceedings.
for preliminary injunction.
controversy until further orders by
the Supreme Court.
Requirements
1. There must be a verified
application;
2. The application must show
facts entitling the applicant to
the relief demanded;
3. A bond must be filed, unless
exempted in the court where
the action is pending; and
4. Prior notice and hearing for
the party/persons sought to be
enjoined.
Same with preliminary injunction. 1. If issued by the Supreme
Court –the conservation of the
status quo is desirable or
TRO shall be acted upon only
essential
(Regalado,
after the sheriff’s return of service
Remedial Law Compendium
and/or the records are received
vol. I, 734-35)
by the branch selected by raffle.
2. If issued by a lower court –
must comply with requisites
for a TRO under the Rules.
When to File
At any stage of an action or 1. When great or irreparable At any stage of an action or
proceeding prior to the judgment
injury would result to the proceeding prior to the judgment
or final order.
applicant before the matter or final order.
can be heard on notice;
2. When the matter is of extreme
urgency and the applicant will
suffer grave injustice and
irreparable injury, the judge
may issue ex parte a TRO
effective for 72 hours from
issuance.
Where to File
RTC having territorial jurisdiction over the act sought to be enjoined The Rules of Court do not state
or the principal office of the corporation whose acts are sought to be where to file an application for
enjoined; Court of Appeals; Supreme Court.
status quo ante order. However,
from the definition of status quo
as
the
last
peaceable
uncontested status in the case,
when a court issues a TRO to
maintain the status quo, it refers
to the status quo ante.
Period of Effectivity
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Until the final disposition of the a. RTC – 20 days, non- Until the final disposition of the
principal action
extendible
(including
the principal action or as may be
original 72 hours);
directed by the Supreme Court.
b. CA – may be effective for 60
days from service on the party
or person sought to be
enjoined;
c. SC – may be effective until
further orders.
Ex Parte
Cannot be granted ex parte
a. 20 day TRO – cannot be a. If issued by the Supreme
Court – may be issued motu
granted ex parte
propio;
b. 3 day TRO – can be granted
ex parte
b. If issued by a lower court –
partakes the nature of a TRO.
X
3. KINDS OF INJUNCTIONS; KINDS OF
TEMPORARY RESTRAINING ORDERS
Preliminary Prohibitory Injunction
The purpose of a preliminary prohibitory injunction
is to preserve the status quo of the things subject
of the action or the relation between the parties, in
order to protect the rights of the plaintiff respecting
the subject of the action during the pendency of
the suit. If no such preliminary prohibitory
injunction were issued, the defendant may, before
final judgment, do or continue the doing of the act
which the plaintiff asks the court to restrain, and
thus make ineffectual the final judgment rendered
afterwards granting the relief sought by the
plaintiff. (Calo v. Roldan, G.R. No. L-252, 1946)
Preliminary Mandatory Injunction
The purpose of a preliminary mandatory
injunction, unlike a preliminary prohibitory
injunction, is to require the performance of a
particular act or acts; thus, it tends to do more than
maintain the status quo. Hence the plaintiff’s right
must be clear and unmistakable. (Prosperity Credit
Resources v. CA, G.R. No. 114170, 1999)
PRELIMINARY
PROHIBITORY
INJUNCTION
To prevent a person
from the performance
of a particular act.
The act had not yet
been performed.
Status
Quo
preserved.
is
PRELIMINARY
MANDATORY
INJUNCTION
To require a person to
perform a particular
act.
The act has already
been performed and
has violated the rights
of another.
Status
Quo
is
restored.
Final injunction
Granted if, after the trial of the action, it appears
that the applicant is entitled to have the act or acts
complained of permanently enjoined.
It may perpetually restrain the party or person
enjoined from the commission or continuance of
the act or acts or confirming the preliminary
mandatory injunction. (Sec. 9, Rule 58)
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4. WHEN WRIT MAY BE ISSUED, WHEN
WRIT MAY NOT BE ISSUED
Preliminary injunction is granted at any stage of
the proceedings prior to the judgment or final
order. (Sec. 1, Rule 58)
Examples of When Preliminary Injunction May
be Issued
i. In petitions for relief from judgment entered
through fraud, accident, mistake, or excusable
negligence (Sec. 5, Rule 38);
ii. In actions for certiorari, prohibition, and
mandamus (Sec. 7, Rule 65);
iii. In actions for annulment of judgments obtained
through fraud (Anuran vs. Aquino and Ortiz,
G.R. No. L-12397, 1918);
iv. In actions for annulment of judgments which
are not patent nullities, i.e. want of jurisdiction,
lack of due process of law (Banco EspañolFilipino vs. Palanca, G.R. No. L-11390, 1918);
v. To restrain husband from alienating or
encumbering
conjugal
property
during
pendency of divorce proceedings. (De La Viña
vs. Villareal and Geopano, G.R. No. L-13982,
1920)
vi. To restrain continued breach of valid negative
obligation;
vii. To enjoin repeated trespass of land. (Rodulfa
vs. Alfonso, G.R. No. L-144, 1946);
viii.
To restrain the city from proceeding with
abatement of nuisance per accidens before it
has been judicially declared as such (Iloilo Ice
and Cold Storage Co. vs. Municipal Council of
Iloilo, G.R. No. 7012, 1913);
ix. To restrain voting of disputed shares of stocks
(Madrigal vs. Rodas, G.R. No. L-1636, 1948);
x. To restrain the sheriff from selling property on
execution not belonging to judgment debtor
(Codesal & Ocampo vs. Ascue, G.R. No.
11403, 1918);
xi. To restrain criminal prosecutions (Brocka v.
Enrile, G.R. Nos. 69863-65, 1990);
xii. In cases of forcible entry and unlawful detainer.
(Sec. 15, Rule 70).
Generally, a criminal prosecution may not be
restrained or stayed by injunction, preliminary or
final, except:
a. To afford adequate protection to the
constitutional rights of the accused;
REMEDIAL LAW
b. When necessary for the orderly administration
of justice or to avoid oppression or multiplicity
of action;
c. Where there is a prejudicial question which is
sub judice;
d. When the acts of the officers are without or in
excess of authority;
e. When double jeopardy is clearly apparent;
f. When the prosecution is under an invalid law,
ordinance, or regulation;
g. Where the court has no jurisdiction over the
offense;
h. Where it is a case of persecution rather than
prosecution;
i. Where charges are manifestly false and
motivated by lust or vengeance;
j. When there is clearly no prima facie case
against the accused and a motion to quash on
that ground has been denied; and
k. Preliminary Injunction has been issued by the
SC to prevent threatened unlawful arrest of
petitioners. (Brocka v. Enrile, G.R. Nos. 6986365, 1990)
Examples of When Preliminary Injunction Does
Not Lie
i. To take property out of the possession of one
party and place it in another whose title is not
clearly established by law (Devesa vs. Arbes,
G.R. No. 4891, 1909);
ii. When action for damages would adequately
compensate the injuries caused (Golding vs.
Balatbat, G.R. No. 11130, 1917);
iii. To prevent directors from discharging their
office and restoring former directors (Silen vs.
Vera, G.R. No. 45574, 1937);
iv. To restrain criminal prosecution where the
Ombudsman had authorized the special
prosecutor to conduct a preliminary injunction
or to file an injunction (Santiago vs. Vasquez,
G.R. Nos. 99289-90, 1992);
v. To enjoin the collection of national internal
revenue taxes (NIRC, Sec. 218) but not local
taxes (Angeles City v. Angeles City Electric
Corporation, G.R. No. 166134, 2010)
vi. To block the discharge of functions and
implementation of decisions of the Privatization
and Management Office under the Dept. of
Finance, in connection with the acquisition,
sale, or disposition of assets transferred to it.
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REMEDIAL LAW
(Proclamation No. 50 & 50-A of 1986, Sec. 31;
EO No. 323, Art. III, 2000)
vii. To restrain the implementation of national
infrastructure projects (R.A. No. 8975, Sec. 3)
viii.
To restrain any freeze order issued by the
Anti-Money Laundering Council except the
Court of Appeals or the Supreme Court. (R.A.
No. 9160, Sec. 10)
ix. Against the Presidential Agrarian Reform
Council (PARC) or any of its duly authorized or
designated agencies in any case, dispute or
controversy arising from, necessary to, or in
connection
with
the
application,
implementation, enforcement, or interpretation
of the Comprehensive Agrarian Reform Law
and other pertinent laws on Agrarian reform
(R.A. No. 6657, Sec. 55) nor against the Dept
of Agrarian Reform, the Dept of Agriculture, the
Dept of Environment and Natural Resources,
and the Dept. of Justice in their implementation
of the comprehensive agrarian reform program.
(R.A. No. 6657, Sec. 68)
x. Against the extrajudicial foreclosure of real
estate mortgage on the allegation that:
i. The loan secured by the mortgage has been
paid or is not delinquent unless the
application is verified and supported by
evidence of payment
ii. The interest on the loan is unconscionable,
unless the debtor pays the mortgagee at
least 12% per annum interest on the
principal obligation as stated in the
application for foreclosure sale, which shall
be updated monthly while the case is
pending. (A.M. No. 99-10-05-O, 2007)
c. That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the
judgment ineffectual. (Sec. 3, Rule 58)
5. GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION
Injunction
Against
Acts
Already
Consummated
General Rule: Injunction contemplates acts being
committed or about to be committed; thus, it does
not lie against acts already consummated.
(Regalado, 2008 ed.; Municipal Council of Sta.
Rosa v. La Laguna, G.R. No. 1697, 1904)
A preliminary injunction may be granted when it is
established:
a. That the applicant is entitled to the relief
demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of, or
in requiring the performance of an act or acts,
either for a limited period or perpetually;
b. That the commission, continuance, or nonperformance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
Note: The rule on preliminary injunction merely
requires that unless restrained, the act complained
of will probably violate his rights and tend to render
the judgment ineffectual.
Entitlement to Relief Demanded
When there is a clear finding that the applicant is
indeed the owner of the land in dispute, the
applicant is entitled to the benefit of injunctive relief
to remove intruders. (Sps. Dela Rosa v Heirs of
Juan Valdez, G.R. No. 159101, 2011)
The writ will not issue if documents show that the
right of the applicant is disputed, i.e. existence of
lien on properties sought to be released from the
mortgage. (Ngo v Allied Banking Corp, G.R. No.
177420, 2010)
A writ of preliminary injunction cannot be issued
without a prior notice and hearing. It cannot be
issued ex parte. (Sec. 5, Rule 58) Only a 72-hour
TRO can.
Where the defendant is heard on the application
for injunction, the trial court must consider, too, the
weight of his opposition. (G.G. Sportswear v. BDO,
G.R. No. 184434, 2010)
Exception: In cases of issuance of mandatory
injunction, i.e., if the acts complained of are
continuing in nature and were in derogation of
plaintiff’s rights at the outset. (Manila Electric Co.
v. Del Rosario, G.R. No. 7688, 1912)
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Neither does it protects contingent or future rights
nor lies to enforce an abstract right. (Cerenio v.
Dictado G.R. No. 81550, 1988)
6. GROUNDS FOR OBJECTION TO, OR FOR
THE DISSOLUTION OF INJUNCTION OR
RESTRAINING ORDER
The application for injunction or restraining order
may be denied or dissolved, if granted, upon a
showing of:
a. Its insufficiency;
b. Other grounds upon affidavits of the party or
person enjoined, which may be opposed by the
applicant also by affidavits;
c. If it appears after hearing that:
 Although the applicant is entitled to the
injunction or restraining order, the issuance
or continuance thereof, as the case may be,
would cause irreparable damage to the
party or person enjoined while the applicant
can be fully compensated for such damages
as he may suffer; provided that:
 The former files a bond in an amount
fixed by the court conditioned that he will
pay all damages which the applicant
may suffer by the denial or dissolution of
the restraining order. (Sec. 6, Rule 58).
The injunction may also be modified if it appears
that the extent of the preliminary injunction or
restraining order granted is too great. (Id.)
Filing of Counterbond to Dissolve Injunction is
Not a Matter of Right
Unlike the counter-bond to discharge attachment,
which the court shall order after due notice and
hearing if the party whose property has been
attached files a bond sufficient to secure the
payment of any judgment that the attaching party
may recover in the action, the counterbond to
dissolve injunction may be approved by the court
after hearing if:
1. The court in the exercise of its discretion, finds
that the continuance of the injunction would
cause great damage to the defendant, while
the plaintiff can be fully compensated for such
damages as he may suffer; AND
2. The defendant files a counter-bond. (Yap vs.
Int’l. Exchange Bank, G.R. No. 175145, 2008)
REMEDIAL LAW
Service of Copies of Bonds
The 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 or sureties
thereon. (Sec. 7, Rule 58)
The injunction shall be dissolved:
1. If the applicant's bond is found to be insufficient
in amount, or if the surety or sureties thereon
fail to justify the insufficiency; AND
2. A bond sufficient in amount with sufficient
sureties approved after justification is not filed
forthwith. (Sec. 7, Rule 58).
If the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount
with sufficient sureties approved after justification
is not filed forthwith, the injunction shall be granted
or restored, as the case may be. (Sec. 7, Rule 58)
7. DURATION OF TEMPORARY
RESTRAINING ORDERS
General Rule: A TRO is effective only for a period
of 20 days from service on the party or person
sought to be enjoined.
Exception: If the matter is of extreme urgency and
the applicant will suffer grave injustice and
irreparably injury, it can be issued with an
effectivity of 72-hours from issuance and
extendible up to 20 days after a summary hearing.
(Sec. 5, Rule 58)
Comparison: Effectivity Depending on the
Court Which Issues TRO (Sec. 5, Rule 58)
ISSUED BY
EFFECTIVITY
RTC
20
days,
non-extendible
(including the original 72 hours).
CA
May be effective for 60 days
from service on the party or
person sought to be enjoined.
SC
May be effective until further
orders.
20-day TRO
It shall be granted if it shall appear from facts
shown by affidavits or by the verified application
that great or irreparable injury would result to the
applicant before the matter can be heard on notice
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and hearing on the application for preliminary
injunction.
It shall be granted by the court to which the
application for preliminary injunction was made
and is effective for the said period, to be counted
from notice to the person or party sought to be
enjoined.
Within the 20-day period, the court must:
1. Order said party or person to show cause, at a
specified time and place, why the injunction
should not be granted;
2. Determine within the same period whether the
preliminary injunction should be granted; and
3. Accordingly issue the corresponding order.
(Sec. 5, Rule 58)
The rule against the non-extendibility of the 20-day
effectivity of a temporary restraining order is
absolute if issued by a Regional Trial Court. The
failure of the trial court to fix a period in the
temporary restraining order does not convert it to
a preliminary injunction. Where there is an
omission to fix the period, the 20-day period is
deemed incorporated in the order. (Bacolod City
Water District v. Labayen, G.R. No. 157494, 2004)
72-hour TRO
It shall be granted if:
1. The matter is of extreme urgency; and
2. The applicant will suffer grave injustice and
irreparable injury. (Sec. 5, Rule 58).
It shall be granted by the executive judge of a
multiple-sala court or the presiding judge of a
single-sala court, who shall immediately comply
with Sections 4 and 5, Rule 58 as to service of
summons and the documents to be served
therewith.
Reckoning Point of the Effectivity of a TRO
A 20-day TRO has an effectivity of only 20 days to
be counted from service to the party sought to be
enjoined. Likewise, within those 20 days, the court
shall order the enjoined party to show why the
injunction should not be granted and shall then
determine whether or not the injunction should be
granted. (First Sarmiento Property Holdings, Inc.
v. Philippine Bank of Communications, G.R. No.
202836, 2018).
REMEDIAL LAW
On the other hand, when there is extreme urgency
and the applicant will suffer grave injustice and
irreparable injury, the court shall issue a temporary
restraining order effective for only 72 hours upon
issuance. Within those 72 hours, the court shall
conduct a summary hearing to determine if the
temporary restraining order shall be extended until
the application for writ of preliminary injunction can
be heard. However, in no case shall the extension
exceed 20 days. (Id.).
Effect If Application for Preliminary Injunction
is Not Resolved Within the 20-Day Period
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the TRO is deemed automatically vacated.
(Sec. 5, Rule 58)
Effect if No Action is Taken Within the 20-day
Period
The
temporary
restraining
order
would
automatically expire on the 20th day by sheer
force of law, no judicial declaration to that effect
being necessary. (Sec. 5, Rule 58)
Ban on Issuance of TRO or Writ of Injunction
in Cases Involving Government Infrastructure
Projects
No court, except the Supreme Court, shall issue
any TRO, preliminary injunction, or preliminary
mandatory injunction against the government, or
any of its subdivisions, officials, or any person or
entity, whether public or private, acting under the
government’s discretion, to restrain, prohibit, or
compel the following acts:
a. Acquisition, clearance, and development of the
right-of-way and/or site or location of any
national government project;
b. Bidding or awarding of contract/project of the
national government;
c. Commencement,
prosecution,
execution,
implementation, or operation of any such
contract or project;
d. Termination or rescission of any such
contract/project; and
e. The undertaking or authorization of any other
lawful
activity
necessary
for
such
contract/project.
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This prohibition shall apply in all cases, disputes,
or controversies instituted by a private party,
including but not limited to cases filed by bidders
or those claiming to have rights through such
bidders involving such contract/project. (R.A. No.
8975, Sec. 3)
Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec. 3
is void and of no force and effect. (R.A. No. 8975,
Sec. 4)
Consequence of Issuance of TRO Against
Government Infrastructure Projects
Any judge who shall issue the same in violation of
Sec. 3 shall suffer the penalty of suspension of at
least 60 days without pay, in addition to any civil or
criminal liabilities he or she may incur under
existing laws. (R.A. No. 8975, Sec. 6).
When Prohibition is Not Applicable
1. When the matter is of extreme urgency
involving a constitutional issue, such that
unless a TRO is issued, grave injustice and
irreparable injury will arise; and
2. Upon the filing of a bond by the applicant, the
amount which is to be fixed by the court and
shall accrue in favor of the government if the
court should finally decide that the applicant
was not entitled to the relief sought. (R.A. No.
8975, Sec. 3).
Other Instances When TRO May Not be Issued
A temporary restraining order may not be issued
to compel the performance of an act. (Villanueva
vs. CA, G.R. No. 117661, 1996).
Courts should avoid issuing a writ of preliminary
mandatory injunction which would in effect dispose
of the main case without trial. There would be in
effect a prejudgment of the main case and a
reversal of the rule on the burden of proof since it
would assume the proposition which the plaintiffs
were inceptively bound to prove. (Searth
Commodities Corp vs. CA, G.R. No. 64220, 1992)
REMEDIAL LAW
8. RULE ON PRIOR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
General Rule: The application for a writ of
preliminary injunction may or may not be included
in a complaint or any initiatory pleading. The notice
of hearing on the said application shall be
preceded or contemporaneously accompanied by
service of summons, together with a copy of the
complaint or initiatory pleading and the applicant’s
affidavits and bond, upon the adverse party in the
Philippines. (Sec. 4, Rule 58).
Exceptions: The requirement of prior or
contemporaneous service of summons shall not
apply, in the following cases:
a. The summons could not be served personally
or by substituted service despite diligent
efforts; or
b. The adverse party is a resident of the
Philippines temporarily absent therefrom; or
c. The adverse party a non-resident thereof. (Id).
Duty of the Court That Issued the Writ
The trial court, the Court of Appeals, the
Sandiganbayan or the Court of Tax Appeals that
issued the writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency
shall decide the main case or petition six (6)
months from the issuance of the writ. (A.M. No. 077-12-SC, Effective December 27, 2007)
Procedure for Issuance of a TRO
(Administrative Circular 20-95; Rule 58, Sec. 4 and
5)
Under ordinary circumstances:
1. The complaint is filed with a prayer for TRO or
WPI;
2. The case shall be raffled and transmission of
records to selected branch.
Note: If filed in a multiple-sala court, the raffle
must be done after notice to and in the
presence of the adverse party or the person to
be enjoined.
3. The preliminary injunction may only be heard
after the trial court has ordered the issuance of
the usual 20-day TRO. Within that period of 20
days, the court shall order the party sought to
be enjoined to show cause at a specified time
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and place why the injunction should not be
granted. During that same period, the court
shall also determine the propriety of granting
the preliminary injunction and then issue the
corresponding order to that effect. (FERIA,
2013, citing Lago vs. Abul Jr, A.M. No. RTJ-102255, 2011).
When there is grave and irreparable injury or
extreme urgency:
1. File a complaint with prayer for TRO or WPI;
2. Executive judge decides whether to issue an ex
parte 72-hour TRO;
 Applies when the matter is of extreme
urgency and the applicant will suffer grave
injustice and irreparable injury.
3. Issuance or denial of the 72-hour TRO;
4. The case is raffled;
 Notice of raffle must be sent to a party. This
happens even before summons;
 Raffled to a branch/sala.
5. Judge must call a summary hearing within the
72 hours, before the TRO expires, to determine
whether the TRO shall be extended until the
application for preliminary injunction can be
heard;
 Notice of hearing and notice of summons
must already be given.
6. If the TRO is extended to 20 days, during the
20 days, the judge shall conduct hearings to
resolve whether or not to issue a writ of
preliminary injunction.
 Almost akin to a trial, but not a full-blown
trial.
 If not resolved or no action taken within 20
days, TRO is deemed automatically
vacated; it will automatically expire by sheer
force of law, no declaration to that effect
necessary.
When Final Injunction Granted
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined the court
shall grant a final injunction perpetually restraining
the party or person enjoined from the commission
or continuance of the act or acts of confirming the
preliminary mandatory injunction. (Sec. 9, Rule 58)
REMEDIAL LAW
Claim for Damages From the Bond Filed
The posting of bond in connection with a
preliminary
injunction
(or
attachment,
receivership, or replevin) does not operate to
relieve the party obtaining the injunction from any
and all responsibility for the damages that the writ
may cause. It merely gives additional protection to
the party against whom injunction is granted. (Sec.
20, Rule 57; Sec. 8, Rule 58)
At the trial, the amount of damages to be awarded
to either party, upon the bond of the adverse party,
shall be claimed, ascertained, and awarded under
the same procedure prescribed in Section 20 of
Rule 57, to wit:
1. An application for damages must be filed:
a. Before the trial;
b. Before the appeal is perfected; or
c. Before the judgment becomes executory;
2. The application must be with due notice to the
adverse party and his sureties;
3. The damages shall be awarded after hearing
and included in the judgment of the main case;
4. If the judgment on the appellate court be
favorable against the party enjoined, he must
claim damages sustained during the pendency
of the appeal and before the judgment
becomes executory, in accordance with nos. 2
and 3 above. The appellate court may allow the
application to be heard and decided by the trial
court;
5. Should the bond be insufficient to satisfy the
award, the claiming party shall not be
prevented from recovering the damages, in the
same action, from any property of the adverse
party which is not exempt from execution. (Sec.
20, Rule 57; Sec. 8, Rule 58).
If surety is given due notice of the application for
damages, he is bound by the judgment that may
be entered against the principal. If no notice is
given, the court must order the surety to show
cause why the bond should not respond for the
judgment for damages. If surety should contest,
the court will set it for summary hearing. (Visayan
Surety & Insurance Corp vs. Pascual, G.R. No. L2981, 1950).
The claim for damages must be presented in the
principal action and judgment therefor should be
included in the final judgment of the case. It must
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be claimed in the same action, otherwise barred.
(Feria 2013 citing Mendoza vs. Cruz, G.R. No. L26829, 1979)
The remedy is exclusive and by failing to file a
motion for the determination of the damages in
time and while the judgment is still under the
control of the court, the claimant loses his right to
such damages. (Feria 2013, citing Japco vs. City
of Manila, G.R. No. 24584, 1926)
E. RECEIVERSHIP
Nature of the Power and Authority of the
Courts to Appoint a Receiver
The power to appoint a receiver is a delicate one
and should be exercised with extreme caution and
only under 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. (Tantano v. Caboverde, G.R. No.
203585, 2013).
Purpose of Receivership
The purpose of receivership is to protect and
preserve the rights of the parties during the
pendency of the main action, during the pendency
of an appeal, or as an aid in the execution of a
judgment when the writ of execution has been
returned unsatisfied. (Sec. 1, Rule 59).
Receivership is aimed at the preservation of, and
at making more secure, existing rights. It cannot
be used as an instrument for the destruction of
those rights. (Arranza v. BF Homes, G.R. No.
131683, 2000).
Property subject of receivership must be under
litigation. (Sec. 1, Rule 59).
REMEDIAL LAW
Receiver
A receiver is a person appointed by the court on
behalf of all the parties to the action 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 appointment of a receiver is not
a matter of absolute right. It depends upon the
sound discretion of the court and is based upon
the facts and circumstances of each case.
(Commodities Storages & Ice Plant v. CA, G.R.
No. 125008, 1997)
A receiver is not an agent or representative of any
party to the action. He is an officer of the court
exercising his functions in the interest of neither
plaintiff nor defendant, but for the common benefit
of all parties in the interest. He performs his duties
“subject to the control of the Court,” and every
question involved in the receivership may be
determined by the court taking cognizance of the
receivership proceedings. (Pacific Merchandising
Corporation v. Consolacion Insurance & Surety
Co., G.R. No. L-30204, 1976)
Not only that he should act at all time with the
diligence and prudence of a good father of a family
but should also not incur any obligation or
expenditure without leave of court and it is the
responsibility of the court to supervise the receiver
and see to it that he adheres to the above standard
of his trust and limits the expenses of the
receivership to the minimum. (Normandy v.
Duque, G.R. No. L-25407, 1969)
Unauthorized contracts of a receiver do not bind
the court in charge of receivership. They are the
receiver’s own contracts and are not recognized
by the courts as contracts of receivership. (Pacific
Merchandising Corporation v. Consolacion
Insurance & Surety Co., G.R. No. L-30204, 1976)
1. CASES WHEN RECEIVER MAY BE
APPOINTED
Upon a verified application, one or more receivers
of the property subject of the action or proceeding
may be appointed by the court where the action is
pending or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the
following cases:
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a. When it appears from the verified application,
and such other proof as the court may require,
that the party applying for the appointment of a
receiver has an interest in the property or fund
which is the subject of the action or proceeding,
and that such property or fund is in danger of
being lost, removed, or materially injured
unless a receiver be appointed to administer
and preserve it;
b. When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
c. After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
judgment, or otherwise to carry the judgment
into effect;
d. Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation. (Sec. 1, Rule 59).
During the pendency of an appeal, the appellate
court may allow an application for the appointment
of a receiver to be filed in and decided by the court
of origin and the receiver appointed to be subject
to the control of said court. (Id.).
2. REQUISITES
The following are the requisites for receivership:
1. That the application for receivership is based
on the grounds under Sec. 1 of Rule 59;
2. That the properties being placed under
receivership are those involved in the litigation.
(Central Sawmills v. Alto Surety & Insurance,
G.R. No. L-24508, 1969);
3. That the plaintiff must not be in the actual
possession of the property being placed under
receivership. (Calo v. Roldan, G.R. No. L-252,
1946);
 This is because there would be no reason
for such appointment, for the owner and
REMEDIAL LAW
possessor of a property is more interested
than other persons in preserving and
administering it. (Id.);
4. The rights of the parties must not depend on
the pending determination of adverse claims of
legal title to real property and one party is in
possession. (Descallar v. Court of Appeals,
G.R. No. 106473, 1993)
Exception: Only when the property is in danger of
being materially injured or lost, as by the
prospective foreclosure of a mortgage thereon for
non-payment of the mortgage loans despite the
considerable income derived from the property, or
if portions thereof are being occupied by third
persons claiming adverse title thereto, may the
appointment of a receiver be justified. (Id.)
The guiding principle for resorting to receivership
is the prevention of imminent danger to the
property. If an action by its nature, does not require
such protection or preservation, said remedy
cannot be applied for and granted. (Commodities
Storage v. CA, G.R. No. 125008, 1997)
3. REQUIREMENTS BEFORE ISSUANCE OF
AN ORDER APPOINTING A RECEIVER
The following are the requirements before the
issuance of an order appointing a person as
receiver:
1. Verified application for the appointment of a
receiver based on any of the grounds
enumerated in Section 1, Rule 59; and
2. Bond filed by the applicant and executed to the
party against whom the application is
presented, in an amount to be fixed by the
court, to the effect that the applicant will pay
such party all damages the latter may sustain
by reason of the appointment of such receiver
in case the applicant should have procured the
same without sufficient cause. (Sec. 2, Rule
59).
The court may, in its discretion, at any time after
the appointment, require an additional bond as
further security for such damages. (Id.)
Procedure for Appointment of a Receiver
1. A verified application must be filed by the party
applying for the appointment of a receiver;
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2. The applicant must have an interest in the
property or funds subject of the action;
3. The applicant must show that the property or
funds is in danger of being lost, removed,
materially altered, wasted or dissipated or there
is a need to preserve or administer the
property, or that all the grounds justifying the
appointment of a receiver exist;
4. The application must be with notice and set for
hearing;
5. The applicant must post a bond in favor of the
party against whom the application is
presented before the court issues the
appointment of a receiver; and
6. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully
and shall file a bond. (Secs. 2-4, Rule 59;
REGALADO, 2012 ed.).
The Rules do not authorize an ex parte
appointment of a receiver. A hearing is necessary
and a bond is required from the applicant. Also, all
the necessary parties to be affected by the
receivership must be included in the suit. (Claudio
v. Zandueta, G.R. No. 45664, 1937).
Appointment of Receiver – Discretionary
The appointment of a receiver pendente lite, like
the granting of an interlocutory injunction, rests in
the discretion of the court where the application is
made which shall consider the entire
circumstances of the case. As such, the action of
the lower court in appointing or denying the
appointment of a receiver pendente lite will not be
disturbed in appeal unless there has been a clear
abuse. It has been said that, of all the
extraordinary remedies authorized by law, the
appointment of a receiver is the most drastic and
far-reaching in effect. Hence, such power of the
court should be exercised with great caution.
(Ylarde v. Enriquez, G.R. No. L-1401, 1947).
Instances When Receivership May Be Denied
or Lifted
a. If the appointment sought or granted is without
sufficient cause (Rule 59, Sec. 3);
b. Adverse party files a counterbond to answer for
damages (Id.);
c. Applicant’s bond is insufficient (Rule 59, Sec.
5); or
d. Receiver’s bond is insufficient (Id.).
REMEDIAL LAW
A clerk of court should not be appointed as a
receiver as he is already burdened with his official
duties. (Alcantara v. Abbas, G.R. No. L-14890,
1963).
Neither party to the litigation should be appointed
as a receiver without the consent of the other
because a receiver is supposed to be an impartial
and disinterested person. (Abrigo v. Kayanan,
G.R. No. L-28601, 1983).
4. GENERAL POWERS OF A RECEIVER
Subject to the control of the court in which the
action is pending, a receiver shall have the power
to:
1. Bring and defend actions in his own name in his
capacity as receiver;
2. Take and keep possession of the property
subject of the controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to
the fund, property, estate, person, or
corporation of which he is the receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that shall
remain among the persons legally entitled to
receive the same; and
9. Generally to do such acts respecting the
property as the court may authorize.
10. Invest funds in his hands, only by order of the
court upon the written consent of all the parties
(Sec.6, Rule 59)
No action may be filed by or against a receiver
without leave of the court which appointed him.
(Id.)
The rule talks of the current receiver of the
company and not the previous receiver. The
reason behind Rule 59, Sec. 6, which requires
leave of court for all suits by or against the present
receiver, is to forestall any undue interference with
the receiver’s performance of duties through
improvident suits. Hence, an action filed by a
successor-receiver against his predecessorreceiver is allowed under Rule 59, Sec. 6, without
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leave of court. (Orendain v. BF Homes, G.R. No.
146313, 2006).
REMEDIAL LAW
Liability for Damages
In order to determine which bond is liable for
damages, it is important to identify the cause.
5. KINDS OF BONDS IN RECEIVERSHIP
The following are the kinds of bonds in
receivership:
A. Applicant’s bond (Sec. 2, Rule 59)
 Bond on appointment of the receiver
 A bond executed to the party against whom
the application is presented, in an amount to
be fixed by the court, to the effect that the
applicant will pay such party all damages he
may sustain by reason of the appointment
of such receiver in case the applicant shall
have procured such appointment without
sufficient cause
 Given before the issuance of the order of
appointment
B. Additional bond (Sec. 2, Rule 59)
 Bond on appointment of the receiver
 Given at any time after the appointment
 May be required by the court in its discretion
C. Counterbond (Sec. 3, Rule 59)
 The application may be denied, or the
receiver discharged, when the adverse
party files a bond executed to the applicant,
in an amount to be fixed by the court, to the
effect that such party will pay the applicant
all damages he may suffer by reason of the
acts, omissions, or other matters specified
in the application as ground for such
appointment.
 If the bond of the adverse party is found to
be insufficient in amount or the surety or
sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties
approved after justification is not filed
forthwith, the receiver shall be appointed or
re- appointed, as the case may be. (Sec. 5,
Rule 59)
D. Receiver’s bond (Sec. 4, Rule 59)
 Bond executed to such person and in such
sum as the court may direct, to the effect
that he will faithfully discharge his duties in
the action or proceeding and obey the
orders of the court
 Given by the receiver before entering upon
his duties
If the damage is caused by reason of the
appointment of the receiver, applicant is liable
through its bond (applicant’s bond). This must be
claimed in the court where appointment of
receivership is made; cannot file a separate action.
If the damage is caused by the negligence or
acts of the receiver, receiver is liable through the
receiver’s bond. This includes acts of
mismanagement or fraud, i.e., fictitious, pays
himself instead of creditor. (Dela Riva v. Molina
Salvado, G.R. No. L-10106, 1915)
Bonds Must be Served to the Interested Parties
The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy
thereof on each interested party, who may except
to its sufficiency or of the surety or sureties
thereon. (Sec. 5, Rule 59)
Recovery on the Bonds
The amount, if any, to be awarded to any party
upon any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure prescribed in Section 20 of Rule 57.
(Sec. 9, Rule 59)
See prior discussion on Claim for Damages From
the Bond Filed under Preliminary Injunction.
Liability for Refusal or Neglect to Deliver
Property to Receiver
A person who refuses or neglects, upon
reasonable demand, to deliver property subject or
involved in the action or proceeding, or in case of
disagreement, as determined and ordered by the
court, may be punished for contempt and shall be
liable to the receiver for the money or the value of
the property and other things so refused or
neglected to be surrendered, together with all the
damages that may have been sustained by the
party or parties entitled thereto as a consequence
of such refusal or neglect. (Sec. 7, Rule 59)
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6. TERMINATION OF RECEIVERSHIP
Whenever the court, motu proprio or on motion of
either party, shall determine that the necessity for
a receiver no longer exists, it shall, after due notice
to all interested parties and hearing:
1. Settle the accounts of the receiver;
2. Direct the delivery of the funds, and other
property in his possession to the person
adjudged to be entitled to receive them; and
3. Order the discharge of the receiver from further
duty as such.
4. The court shall allow the receiver such
reasonable
compensation
as
the
circumstances of the case warrant, to be taxed
as costs against the defeated party, or
apportioned, as judgment requires. (Rule 59,
Sec. 8)
F. REPLEVIN
Replevin
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 in pendente lite. (Rivera v. Vargas, G.R.
No. 165895, 2009)
Nature of an Action for Replevin
The action is primarily possessory in nature and
determines nothing more than the right of
possession. Replevin is so usually described as a
mixed action, being partly in rem and partly in
personam – in rem insofar as the recovery of
specific property is concerned, and in personam
as regards to damages involved. As an “action in
rem,” the gist of the replevin action is the right of
the plaintiff to obtain possession of specific
personal property by reason of his being the owner
or of his having a special interest therein. (BA
Finance Corporation v. CA, G.R. No. 102998,
1996)
Enforceability of a Writ of Replevin
A writ of replevin issued by a Regional Trial Court
or a Municipal Trial Court may be enforced
anywhere in the Philippines. (Fernandez v.
International Corporate Bank, G.R. No. 131283,
1999)
Replevin
v.
Distinctions
Preliminary
REPLEVIN
Available only where
the principal relief
sought in the action is
recovery of personal
property, the other
reliefs (e.g.
damages)
being
merely
incidental
thereto.
Can be sought only
where the defendant
is
in
actual
or
constructive
possession of the
property involved.
Extend
only
to
personal
property
capable of manual
delivery.
Available to recover
personal
property
even if the same is not
concealed, removed,
or disposed of.
Cannot be availed of if
the property is in
custody legis, except:
a. When the seizure
is illegal;
b. Where there is
reason to believe
that the seizure will
not anymore be
followed by the
filing of the criminal
action in court or
there
are
conflicting claims.
Attachment;
PRELIMINARY
ATTACHMENT
Available even if the
recovery of personal
property is only an
incidental relief sought
in the action.
May be resorted to
even if the personality
is in the custody of a
third person.
May be resorted to
even if the property is
intangible
or
incorporeal.
Seize any property
owned by defendant
or adverse party.
Can still be resorted to
even if the property is
in custodia legis.
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(Chua v. CA, G.R.
No.119255, 2003)
1. WHEN MAY WRIT BE ISSUED
When Application May be Filed
A party may apply a writ of replevin to recover the
possession of a personal property:
a. At the commencement of the action; or
b. At any time before defendant files answer.
(Rule 60, Sec. 1)
Note: there can be no replevin before the appellate
courts.
Applicant Need Not be the Owner
The applicant need not be the owner of the
property. It is enough that he has a right to its
possession. (Yang v. Valdez, G.R. No. 73317,
1989)
Note: A chattel mortgagee may maintain an action
for replevin. Where the mortgage authorizes the
mortgagee to take possession of the property on
default, he may maintain an action to recover
possession of the mortgaged chattels from the
mortgagor or from any person in whose hands he
may find them. This is irrespective of whether the
mortgage contemplates a summary sale of the
property or foreclosure by court action. (Agner v.
BPI Family Savings Bank, G.R. No. 182963, 2013)
2. REQUISITES
For a writ of replevin to be issued, the following are
required:
1. An application must be timely filed (Sec. 1, Rule
60);
2. The application must be supported by an
affidavit (Sec 2, Rule 60);
3. The applicant must give a bond executed to the
adverse party. (Id.)
3. AFFIDAVIT AND BOND; REDELIVERY
BOND
Procedure for the Application for Replevin
1. Application for replevin must be filed at any
time before defendant files an answer;
2. Application must contain an affidavit executed
by the applicant or some other person who
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personally knows of the facts the matters
required under the Rules, which shows that:
i. Applicant is the owner of the property
claimed, particularly describing it, or is
entitled to the possession thereof;
ii. Property is wrongfully detained by the
adverse party, alleging the cause of
detention thereof according to the best of
his knowledge, information, and belief;
iii. 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 or should be released from such
seizure or custody; and
iv. Actual market value of the property;
3. Applicant must give a replevin bond, executed
to the adverse party and double the value of the
property. (Rule 60, Sec. 2);
Note: A replevin bond is simply intended to
indemnify the defendant against any loss that
he may suffer by being compelled to surrender
the possession of the disputed property
pending the trial of the action. (Alim v. CA, G.R.
No. 93213, 1991)
4. Upon the filing of such affidavit and approval of
the bond, the court shall issue an order and
corresponding writ of replevin describing the
personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to
take such property into his custody. (Sec. 3,
Rule 60)
Note: If the detention is actually allowed by law,
then no replevin is allowed (Twin Ace Holding v.
Rufina, G.R. No. 160191, 2006)
Remedies of Owner or Person Entitled to
Possession to Secure Return of Property
i. Object to the sufficiency of the bond or of the
surety or sureties thereon (Sec 5, Rule 60);
 In this case, return cannot be immediately
required;
 The result of this remedy is to require a
bond in a higher amount i.e., a new bond.
Only when this order is not complied with
that the replevin is discharged.
ii. Filing of counterbond or redelivery bond (Id.)
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 In this case, return can be immediately
demanded;
 The bond must be double the value of the
property as stated in the applicant’s
affidavit;
 The redelivery bond answers for delivery of
the subject property and payment of all
sums as may be adjudged.
 Requisites:
1. Must be filed before the delivery of
property to the plaintiff and within 5
days after the taking of the property by
the sheriff;
2. Copy must be served to the plaintiff (also
within 5 days after the taking of the
property by the sheriff). (Sec. 6, Rule 60)
4. SHERIFF’S DUTY IN THE
IMPLEMENTATION OF THE WRIT; WHEN
PROPERTY IS CLAIMED BY THIRD PARTY
Duties of the Sheriff
1. The sheriff must serve a copy of the order on
the adverse party, together with a copy of the
application, affidavit, and bond;
2. If the property is in the possession of the
adverse party or his agent, the sheriff must
forthwith take it and retain it in his custody;
3. If the property or any part thereof be concealed
in a building or enclosure, the sheriff must
demand its delivery, and if it not be delivered,
he must cause the building or enclosure to
be broken open and take the property into his
possession;
4. After the sheriff has taken possession of the
property, he must keep it in a secure place and
shall be responsible for its delivery to the
party entitled thereto upon receiving his fees
and necessary expenses for taking and
keeping the same. (Rule 60, Sec. 4)
Disposition of Property by Sheriff
The sheriff shall deliver the property to the
applicant if within 5 days after the taking of the
property by the sheriff, the adverse party:
a. Does not object to the sufficiency of the bond,
or of the surety or sureties contained thereon;
or
b. So objects, and the court affirms its approval of
the applicant’s bond or approves a new bond;
or
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c. If the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond. (Sec. 6, Rule 60)
If for any reason, the property is not delivered to
the applicant, the sheriff MUST return the property
to the adverse party. (Id.)
The Rules provide that property seized under a
writ of replevin is not to be delivered immediately
to the plaintiff. Under Section 6, Rule 60, the
Sheriff should have waited no less than 5 days in
order to give the complainant an opportunity to
object to the sufficiency of the bond. (Hao v.
Andres, A.M. No. P-07-2384, 2008)
Effect of Writ of Replevin That Has Been
Improperly Served
Service of the writ upon the adverse party is
mandatory in line with the constitutional guaranty
on procedural due process and as safeguard
against unreasonable searches and seizures. The
writ or order of replevin should comply with all the
requirements as to matters of form or contents
prescribed by the Rules of Court. The writ must
also satisfy proper service in order to be valid and
effective, i.e., it should be directed to the officer
who is authorized to serve it; and it should be
served upon the person who not only has the
possession or custody of the property involved but
who is also a party or agent of a party to the action.
Consequently, a trial court is deemed to have
acted without or in excess of its jurisdiction with
respect to the ancillary action of replevin if it seizes
and detains a personalty on the basis of a writ that
was improperly served.
The proper remedy of the person being served
with the writ should be to file a motion to quash the
writ of replevin or a motion to vacate the order of
seizure. It now becomes imperative for the trial
court to restore the parties to their former positions
by returning the seized property to petitioner and
by discharging the replevin bond filed by
respondent. (Rivera v. Vargas, G.R. No. 165895,
2009).
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Remedies of Third Parties
A. Terceria (third-party claim);
B. Separate action to assail
possession;
C. File a motion for intervention.
recovery
of
Terceria
When the property taken is claimed against whom
replevin had been issued or his agent, the sheriff
shall not be bound to keep the property under
replevin if such third person shall:
1. Make an affidavit of his title to or right of
possession over the property;
2. Such affidavit states the grounds of such title or
right;
3. The affidavit is served to the sheriff while the
latter has possession of the attached property;
and
4. A copy of the affidavit is served upon the
applicant. (Sec. 7, Rule 60)
However, the sheriff shall still be bound to keep the
property if:
1. The applicant or his agent, on demand of the
sheriff, shall file a bond approved by the court
to indemnify the third-party claimant; and
2. The bond shall be in an amount not less than
the value of the property under replevin as
declared in the affidavit of the applicant;
Note: In case of disagreement as to such value,
the court shall determine the same. (Id.)
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. (Id.)
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.
(Id.)
Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching
property claiming damages against a third-party
claimant who filed a frivolous or plainly spurious
claim, in the SAME or SEPARATE action. (Id.)
When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for
damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer
out of the funds to be appropriated for the purpose.
(Sec. 7, Rule 60)
Note: This is similar as in third-party claims in
execution and in attachment.
In Rule 57, Sec. 14, the affidavit is served upon the
sheriff while he has possession of the attached
property.
In Rule 60, Sec. 7, the affidavit is served within 5
days in which the sheriff has possession, in
connection with Rule 60, Sec. 6.
G. PROVISIONAL REMEDIES AND
INTERIM RELIEFS UNDER SPECIAL
LAWS AND RULES
1. PROVISIONAL REMEDIES OF THE
FAMILY COURTS (R.A. 8369)
Restraining Order:
The Family Court may issue a restraining order:
1. Upon a verified application for relief of abuse
by:
a. The complainant; or
b. The victim for relief from abuse.
2. The application is based on the ground of
violence among immediate family members
living in the same domicile or household; and
3. Such order is directed against the accused or
defendant. (Sec. 7, R.A. No. 8369)
Other Reliefs That May be Awarded:
The Family Court may also:
a. Order the temporary custody of children in all
civil actions for their custody;
b. Order support pendente lite, including
deduction from the salary and use of conjugal
home and other properties in all civil actions for
support (Id.)
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2. HUMAN SECURITY ACT (R.A. 9372)
Restriction on Travel
Travel outside the municipality or city, without the
authorization of the court shall be deemed a
violation of the terms and conditions of his bail
when the following are satisfied:
1. An application for the limitation is made by the
prosecutor;
2. The evidence of guilt against the accused is not
strong;
3. The person charged with the crime of terrorism
or conspiracy to commit terrorism is entitled to
bail and is granted the same; and
4. The limitation is in the interest of national
security and public safety. (Sec. 26, R.A. 9372)
Scope of Restriction
Travel can only be done WITHIN the municipality
or city where the accused resides or where the
case is pending. (Id.)
Effect of Violation of the Restriction
The bail shall be forfeited as provided under the
Rules of Court. (Id.)
House arrest
The accused may also be placed under house
arrest at his or her usual place of residence. (Id.)
Restrictions when on House Arrest
Accused may not use telephones, cellphones, emails, computers, the internet or other means of
communications with people outside the residence
until otherwise ordered by the court. (Id.).
Termination of Restrictions
a. When the accused is acquitted;
b. When the case is dismissed;
c. Upon the discretion of the court; or
d. Upon motion of the prosecutor or accused.
(Sec. 26, R.A. 9372).
Examination of Bank Deposits, Accounts, and
Records
The justices of the Court of Appeals, designated
as a special court handling anti-terrorism cases,
may authorize in writing any police or law
enforcement officer, and the members of his/her
team duly authorized in writing by the AntiTerrorism Council to:
REMEDIAL LAW
a. Examine, or cause the examination of, the
deposits, placements, trust accounts, assets
and records in a bank or financial institution;
and
b. Gather or cause the gathering of any relevant
information about such deposits, placements,
trust accounts, assets, and records from a bank
or financial institution. (Sec. 27, R.A. 9372)
Before granting such authorization, the justices
must satisfy themselves, in a hearing called for the
purpose, of the existence of a probable cause that:
1. A person charged with or suspected of the
crime of terrorism or, conspiracy to commit
terrorism;
2. Of a judicially declared and outlawed terrorist
organization, association, or group of persons;
and
3. Of a member of such judicially declared and
outlawed organization, association, or group of
persons. (Id.).
Process of the Authorization for Examination
I. An ex parte application shall be filed by police
or a law enforcement official who has been duly
authorized in writing to file such ex parte
application by the Anti-Terrorism Council to file
such ex parte application;
II. The application shall be filed in the Court of
Appeals division designated as a special court
to handle anti-terrorism cases;
III. An examination under oath or affirmation of the
applicant and, the witnesses he may produce
to establish the facts that will justify the need
and urgency of examining and freezing the
bank deposits, placements, trust accounts,
assets, and records of those whose accounts
may be examined, is conducted; and
IV. The special court, in writing, shall grant the
authorization to any law enforcement officer
and the members of his/her team duly
authorized by the Anti-Terrorism Council upon:
1. Satisfaction of the need and urgency of
examining and freezing the bank deposits,
placements, trust accounts, assets, and
records; and
2. Satisfaction of the probable cause that:
i. A person charged with or suspected of
the crime of terrorism or, conspiracy to
commit terrorism;
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ii. Of a judicially declared and outlawed
terrorist organization, association, or
group of persons; and
iii. Of a member of such judicially declared
and outlawed organization, association,
or group of persons. (Secs. 27 & 28, R.A.
9372)
Note: The bank or financial institution concerned,
shall not refuse to allow such examination or to
provide the desired information, when so, ordered
by and served with the written order of the Court
of Appeals. (Sec. 27, R.A. 9372)
Note: the provisions of the human security act
shall prevail over the Secrecy of Bank Deposits
Act. (Id.)
3. ANTI-VIOLENECE AGAINST WOMEN
AND CHILDREN ACT (R.A. 9262)
Applicability of Protection Orders to Criminal
Cases
Provisions on protection orders shall be applicable
in impliedly instituted with the criminal actions
involving violence against women and their
children. (Sec. 22, R.A. 9262)
Purpose of a Protection Order
The purpose of a protection order is to prevent
further acts of violence against a woman or her
child and granting other necessary relief. The relief
granted should serve the purpose of:
1. Safeguarding the victim from further harm;
2. Minimizing any disruption in the victim's daily
life; and
3. Facilitating the opportunity and ability of the
victim to independently regain control over her
life. (Sec. 8, R.A. 9262)
Kinds of Protection Orders
1. Barangay protection order (BPO);
2. Temporary protection order (TPO); and
3. Permanent protection order (PPO). (Id.)
Reliefs Included in Protection Orders
i. Prohibition of the respondent from threatening
to commit or committing, personally or through
another, any of the acts of violence under Sec.
5 of R.A. 9372;
ii. Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
REMEDIAL LAW
communicating with the petitioner, directly or
indirectly;
iii. Removal and exclusion of the respondent from
the residence of the petitioner, regardless of
ownership of the residence, either temporarily
for the purpose of protecting the petitioner, or
permanently where no property rights are
violated, and if respondent must remove
personal effects from the residence, the court
shall direct a law enforcement agent to
accompany the respondent has gathered his
things and escort respondent from the
residence;
iv. Directing the respondent to stay away from
petitioner and designated family or household
member at a distance specified by the court,
and to stay away from the residence, school,
place of employment, or any specified place
frequented by the petitioner and any
designated family or household member;
v. Directing lawful possession and use by
petitioner of an automobile and other essential
personal effects, regardless of ownership, and
directing the appropriate law enforcement
officer to accompany the petitioner to the
residence of the parties to ensure that the
petitioner is safely restored to the possession
of the automobile and other essential personal
effects, or to supervise the petitioner's or
respondent's removal of personal belongings;
vi. Granting a temporary or permanent custody of
a child/children to the petitioner;
vii. Directing the respondent to provide support to
the woman and/or her child if entitled to legal
support. Notwithstanding other laws to the
contrary, the court shall order an appropriate
percentage of the income or salary of the
respondent to be withheld regularly by the
respondent's employer for the same to be
automatically remitted directly to the woman.
Failure to remit and/or withhold or any delay in
the remittance of support to the woman and/or
her child without justifiable cause shall render
the respondent or his employer liable for
indirect contempt of court;
viii.
Prohibition of the respondent from any use
or possession of any firearm or deadly weapon
and order him to surrender the same to the
court for appropriate disposition by the court,
including
revocation
of
license
and
disqualification to apply for any license to use
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or possess a firearm. If the offender is a law
enforcement agent, the court shall order the
offender to surrender his firearm and shall
direct the appropriate authority to investigate
on the offender and take appropriate action on
matter;
ix. Restitution for actual damages caused by the
violence inflicted, including, but not limited to,
property damage, medical expenses, childcare
expenses and loss of income;
x. Directing the DSWD or any appropriate agency
to provide petitioner may need; and
xi. Provision of such other forms of relief as the
court deems necessary to protect and provide
for the safety of the petitioner and any
designated family or household member,
provided petitioner and any designated family
or household member consents to such relief.
(Id.)
Note: Such reliefs shall be granted even in the
absence of a decree of legal separation or
annulment or declaration of absolute nullity of
marriage. (Id.)
A BPO does not include all reliefs mentioned
above. See further discussions below.
Who May file Petition for Protection Orders
a. The offended party;
b. The parents or guardians of the offended party;
c. The ascendants, descendants or collateral
relatives within the fourth civil degree of
consanguinity or affinity;
d. Officers or social workers of the DSWD or
social workers of local government units
(LGUs);
e. Police officers, preferably those in charge of
women and children's desks;
f. The Punong Barangay or Barangay Kagawad;
g. The lawyer, counselor, therapist or healthcare
provider of the petitioner; or
h. At least 2 concerned responsible citizens of the
city or municipality where the violence against
women and their children occurred and who
has personal knowledge of the offense
committed. (Sec. 9, R.A. 9262)
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Where to Apply for a Protection Order
A. BPO – in accordance with the rules on venue
under Section 409 of the Local Government
Code, to wit:
a. Those involving residents of the same
barangay, then in the Punong Barangay
therein;
b. Those involving actual residents of different
barangays within the same city or
municipality shall be brought in the
barangay where the respondent or any of
the respondents actually resides, at the
election of the complainant;
If the parties reside in different municipalities or
cities, the Punong Barangay or any kagawad of
the barangay where the victim-survivor resides
shall assist the victim-survivor/applicant in filing an
application for a Protection Order from the court
within 2 hours from the request. (Sec. 15, IRR of
R.A. 9262).
The place of residence or location of the victimsurvivor/petitioner may include the place where
the victim-survivor temporarily resides or where
she sought refuge/sanctuary to escape from and
avoid continuing violence from the respondent.
(Id.).
B. TPO or PPO – in the Family Court in the place
of residence of the petitioner, if any. Otherwise,
the application shall be filed with the RTC or
MeTC/MTC with territorial jurisdiction over the
place of residence of the petitioner. (Sec. 10,
R.A. 9262)
The place of residence of the victim-survivor
may include the place where she temporarily
resides or where she sought refuge/sanctuary
to escape from and avoid continuing violence
from the respondent. (Sec. 21, R.A. 9262)
How to Apply for a Protection Order
1. The application for a protection order must be:
i. In writing;
ii. Signed by the applicant; and
iii. Verified under oath by the applicant.
2. It may be filed as an independent action or as
incidental relief in any civil or criminal case the
subject matter or issues thereof partakes of a
violence as described in Sec. 5 of R.A. 9262.
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3. A standard protection order application form,
written in English with translation to the major
local languages, shall be made available to
facilitate applications for protections order and
shall contain the following information:
i. names and addresses of petitioner and
respondent;
ii. description
of
relationship
between
petitioner and respondent;
iii. a statement of the circumstances of the
abuse;
iv. description of the reliefs requested by
petitioner as specified in Section 19 herein;
v. request for counsel and reasons for such;
vi. request for waiver of application fees until
hearing; and
vii. an attestation that there is no pending
application for a protection order in another
court.
4. If the applicant is not the victim, the application
must be accompanied by an affidavit of the
applicant attesting to:
i. The circumstances of the abuse suffered by
the victim; and
ii. The circumstances of consent given by the
victim for the filing of the application.
5. When disclosure of the address of the victim
will pose danger to her life, it shall be so stated
in the application. (Sec. 11, R.A. 9262)
An application for protection order filed with a court
shall be considered an application for both a TPO
and PPO. (Id.)
BPO
It is a protection order issued by the Punong
Barangay ordering the perpetrator to desist from
committing the following acts:
a. Causing physical harm to the woman or her
child; or
b. Threatening to cause the woman or her child
physical harm. (Secs 5 (a) & (b), 14, R.A. 9262)
REMEDIAL LAW
communicating with the victim-survivor, directly
or indirectly. (Sec. 13, IRR of R.A. 9262)
It is issued by the Punong Barangay on the date of
filing after ex parte determination of the basis of
the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the
application shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a
Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was
unavailable at the time for the issuance of the
BPO. (Sec. 14, R.A. 9262)
The
victim-survivor/petitioner
may
be
accompanied by any non-lawyer advocate in the
proceedings before the Punong Barangay. (Sec.
14, IRR of R.A. 9262)
The BPO shall state the last known address of the
respondent, the date and time of issuance, and the
protective remedies prayed for by the victimsurvivor/petitioner. The BPO shall be effective for
15 days. (Id.)
Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay
Kagawad shall personally serve a copy of the
same to the respondent, or direct any barangay
official to effect its personal service. It is deemed
served upon:
a. Receipt thereof by the respondent;
b. Receipt by any adult who received the BPO at
the address of the respondent;
c. In case the respondent or any adult at the
residence of the respondent refuses, for
whatever cause, to receive the BPO, by leaving
a copy of the BPO at the said address in the
presence of at least 2 witnesses. (Id.).
The reliefs that may be granted by the BPO are:
The barangay official serving the BPO must issue
a certification setting forth the manner, place and
date of service, including the reasons why the
same remain unserved. (Id.).
1. Prohibition of the respondent from committing
the acts mentioned above;
2. Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
Within 24 hours after a BPO is issued, the Punong
Barangay, or in her/his absence or inability, any
available Barangay Kagawad shall assist the
victim-survivor/petitioner in filing for an application
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for a TPO or PPO with the nearest court in the
place of residence of the victim-survivor. (Id.).
All BPOs shall be enforceable within the barangay
which issued the order. The issuance of a BPO or
the pendency of an application for a BPO shall not
preclude the victim-survivor/petitioner from
applying for, or the court from granting, a TPO or
PPO. However, where a Temporary Protection
has already been granted by any court, the
barangay official may no longer issue a BPO.
(Sec. 14, IRR of R.A. 9262).
Violation of a BPO shall be punishable by
imprisonment of 30 days without prejudice to any
other criminal or civil action that the offended party
may file for any of the acts committed. (Sec. 21,
R.A. 9262)
A complaint for a violation of a BPO must be filed
directly with any MeTC/MTC that has territorial
jurisdiction over the barangay that issued the BPO.
(Id.)
REMEDIAL LAW
rescheduling or postponing the hearing on the
merits of the issuance of a PPO. If the respondent
appears without counsel on the date of the hearing
on the PPO, the court shall appoint a lawyer for the
respondent and immediately proceed with the
hearing. In case the respondent fails to appear
despite proper notice, the court shall allow ex parte
presentation of the evidence by the applicant and
render judgment on the basis of the evidence
presented. (Id.)
The court shall allow the introduction of any history
of abusive conduct of a respondent even if the
same was not directed against the applicant or the
person for whom the applicant is made. (Id.)
The court shall not deny the issuance of protection
order on the basis of the lapse of time between the
act of violence and the filing of the application. (Id.)
Regardless of the conviction or acquittal of the
respondent, the Court must determine whether or
not the PPO shall become final. Even in a
dismissal, a PPO shall be granted as long as there
is no clear showing that the act from which the
order might arise did not exist. (Id.)
TPO
It refers to the protection order issued by the court
on the date of filing of the application after ex parte
determination that such order should be issued.
(Sec. 15, R.A. 9262)
A TPO may grant some or all reliefs available for a
protection order. It is effective for thirty 30 days.
(Id.)
The court shall schedule a hearing on the issuance
of a PPO prior to or on the date of the expiration of
the TPO. (Id.)
PPO
It is the protection order issued by the court after
notice and hearing. A PPO may grant some or all
reliefs available for a protection order. It shall be
effective until revoked by a court upon application
of the person in whose favor the order was issued.
(Sec. 16, R.A. 9262)
Respondents non-appearance despite proper
notice, or his lack of a lawyer, or the nonavailability of his lawyer shall not be a ground for
4. ANTI-MONEY LAUNDERING ACT (R.A.
9160, AS AMENDED)
Authority to Issue Freeze Order
A freeze order refers to a provisional remedy
aimed at blocking or restraining monetary
instruments or properties in any way related to an
unlawful activity, as herein defined, from being
transacted, withdrawn, deposited, transferred,
removed, converted, concealed, or otherwise
moved or disposed without affecting the ownership
thereof. (Sec. 1 (mm), Rule 2, 2018 IRR of the
AMLA)
Monetary instruments or properties related to an
unlawful activity refers to:
i. All proceeds of an unlawful activity;
ii. All instrumentalities of an unlawful activity,
including all moneys, expenditures, payments,
disbursements, costs, outlays, charges,
accounts, refunds, and other similar items for
the financing, operations, and maintenance of
any unlawful activity;
iii. All monetary instruments or property, including
monetary, financial or economic means,
devices, accounts, documents, papers, items,
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objects or things, used in or having any relation
to any unlawful activity or money laundering,
regardless of the current owner or possessor,
and circumstances of ownership or acquisition;
and
iv. For purposes of freeze order and bank inquiry
order: related and materially-linked accounts.
(Sec. 1 (fff), Rule 2, 2018 IRR of the AMLA)
The Court of Appeals may issue a freeze order of
monetary instrument or property upon:
1. A verified ex parte petition by the Anti-Money
Laundering Council (AMLC); and
2. After determination that probable cause exists
that any monetary instrument or property is in
any way related to an unlawful activity as
defined in Section 3(i) of the R.A. 9160, as
amended. (Sec. 10, R.A. 9160, as amended)
The freeze order shall be effective immediately,
which shall not exceed 6 months depending upon
the circumstances of the case. (Id.)
if there is no case filed against a person whose
account has been frozen within the period
determined by the court, the freeze order shall be
deemed ipso facto lifted. (Id.)
In any case, the court should act on the petition to
freeze within 24 hours from filing of the petition. If
the application is filed a day before a nonworking
day, the computation of the 24-hour period shall
exclude the nonworking days. (Id.)
No court shall issue a temporary restraining order
or a writ of injunction against any freeze order,
except the Supreme Court. (Id.)
A person whose account has been frozen may file
a motion to lift the freeze order and the court must
resolve this motion before the expiration of the
freeze order. (Id.)
Procedure for the Issuance of a Freeze Order
1. The AMLC, through the Solicitor General, files
an ex parte application for a freeze order with
the Court of Appeals (Sec. 2.1, Rule 2, 2018
IRR of the AMLA);
2. The application shall be in the form of a verified
petition accompanied by a certificate against
forum shopping, personally signed by an
REMEDIAL LAW
official of the AMLC (Sec. 45, A.M. No. 05-1104-SC);
3. After determination that probable cause exists
that any monetary instrument or property is in
any way related to an unlawful activity, the
Court of Appeals may issue a freeze order,
which shall be effective immediately, for a
period of 20 days (Sec. 2.5, Rule 2, 2018 IRR
of the AMLA);
4. Before the expiration of the 20-day freeze
order, the Court of Appeals shall conduct a
summary hearing, with notice to the parties, to
determine whether or not to modify or lift the
freeze order, or to extend its effectivity.
Pending resolution by the Court of Appeals, the
freeze order shall remain effective. (Sec. 2.7,
Rule 2, 2018 IRR of the AMLA);
5. The freeze order shall take effect immediately
and shall remain effective for a total period not
exceeding 6 months. (Sec. 2.8, Rule 2, 2018
IRR of the AMLA);
5. FINANCIAL REHABILITATION AND
INSOLVENCY ACT (R.A. 10142)
Stay or Suspension Order
Stay or Suspension Order shall refer to an order
issued in conjunction with the commencement
order that shall:
1. Suspend all actions or proceedings, in court or
otherwise, for the enforcement of claims
against the debtor;
2. Suspend all actions to enforce any judgment,
attachment or other provisional remedies
against the debtor;
3. Prohibit the debtor from selling, encumbering,
transferring or disposing in any manner any of
its properties except in the ordinary course of
business; and
4. Prohibit the debtor from making any payment
of its liabilities outstanding as of the
commencement date except as may be
provided herein. (Sec. 16 (q), R.A. 10142)
Exceptions to the Stay Order:
The Stay or Suspension Order shall not apply to:
a. Cases already pending appeal in the Supreme
Court as of commencement date;
b. Cases pending or filed at a specialized court or
quasi-judicial agency;
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c. Enforcement actions against sureties and other
persons solidarily liable with the debtor, and
third party or accommodation mortgagors as
well as issuers of letters of credit, unless the
property subject of the third party or
accommodation mortgage is necessary for the
rehabilitation of the debtor as determined by
the court upon recommendation by the
rehabilitation receiver;
d. Action of customers or clients of a securities
market participant to recover moneys and
securities entrusted to the latter in the ordinary
course of the latter's business as well as any
action of such securities market participant or
the appropriate regulatory agency or selfregulatory organization to pay or settle such
claims or liabilities;
e. Actions of a licensed broker or dealer to sell
pledged securities of a debtor pursuant to a
securities pledge or margin agreement for the
settlement of securities transactions;
f. Clearing
and
settlement
of
financial
transactions through the facilities of a clearing
agency or similar entities duly authorized,
registered and/or
recognized by the
appropriate regulatory agency like the Bangko
Sentral ng Pilipinas (BSP) and the SEC as well
as any form of actions of such agencies or
entities to reimburse themselves for any
transactions settled for the debtor; and
g. Criminal action against the individual debtor or
owner, partner, director or officer of a debtor.
(Sec. 18, R.A. 10142)
Rehabilitation Receiver
Upon the commencement of the rehabilitation
proceedings through the issuance of a
Commencement Order pursuant to a courtsupervised rehabilitation, a rehabilitation receiver
shall be appointed. (Sec. 16 (h), R.A. 10142)
The rehabilitation receiver shall be deemed an
officer of the court with the principal duty of
preserving and maximizing the value of the assets
of the debtor during the rehabilitation proceedings,
determining the viability of the rehabilitation of the
debtor, preparing and recommending a
Rehabilitation Plan to the court, and implementing
the approved Rehabilitation Plan. (Sec. 31, R.A.
10142)
REMEDIAL LAW
Management During Rehabilitation
The rehabilitation receiver shall not take over the
management and control of the debtor. However,
all disbursements, payments or sale, disposal,
assignment, transfer or encumbrance of property,
or any other act affecting title or interest in
property, shall be subject to the approval of the
rehabilitation receiver and/or the court. (Id.)
Exceptions:
a. Actual or imminent danger of dissipation, loss,
wastage or destruction of the debtor's assets or
other properties;
b. Paralyzation of the business operations of the
debtor; or
c. Gross mismanagement of the debtor, or fraud
or other wrongful conduct on the part of, or
gross or willful violation of this Act by, existing
management of the debtor or the owner,
partner, director, officer or representative/s in
management of the debtor.
In which case, the court may appoint:
a. The rehabilitation receiver to assume the
powers of management of the debtor; or
b. A management committee that will undertake
the management of the debtor. (Sec. 36, R.A.
10142).
"Equality is Equity" Principle
During rehabilitation receivership, the assets are
held in trust for the equal benefit of all creditors to
preclude one from obtaining an advantage or
preference over another by the expediency of an
attachment, execution or otherwise.
When a corporation threatened by bankruptcy is
taken over by a receiver, all the creditors should
stand on an equal footing. Not anyone of them
should be given any preference by paying one or
some of them ahead of the others. This is precisely
the reason for the suspension of all pending claims
against the corporation under receivership.
Instead of creditors vexing the courts with suits
against the distressed firm, they are directed to file
their claims with the receiver who is a duly
appointed officer of the SEC. (New Frontier Sugar
Corporation v. Regional Trial Court, Br. 39, Iloilo
City, G.R. No. 165001, 2007)
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6. PRECAUTIONARY HOLD DEPARTURE
ORDERS
Nature of a Precautionary Hold-Departure
Order (PHDO)
It is a written order of the court commanding the
Bureau of Immigration to prevent any attempt by a
person suspected of a crime to depart from any
Philippine airport or port. (Sec. 1, A.M. No. 18-0705-SC)
A.M. No. 18-07-05-SC authorizes the issuance of
a PHDO even prior to the filing of an information in
court when justified under the circumstances. This
recognizes the fact that the processes leading to
the filing of a case usually take a while before they
are concluded such that by the time the
information is filed in court, the accused may have
already left the country and is now beyond the
reach of courts. (Garcia v. Sandiganbayan, G.R.
Nos. 205904-06, 2018)
PHDO are issued ex parte in cases involving
crimes where:
a. The minimum of the penalty prescribed by law
is at least six (6) years and one (1) day; or
b. The offender is a foreigner, regardless of the
imposable penalty. (Sec. 1, A.M. No. 18-07-05SC).
Venue for Filing
A. Any RTC within whose territorial jurisdiction the
alleged crime was committed, except:
a. For compelling reasons, any RTC within the
judicial region where the crime was
committed if the place of the commission of
the crime is known;
b. RTCs in Manila City, Quezon City, Cebu
City, Iloilo City, Davao City, and Cagayan de
Oro City for applications filed by the
prosecutor based on complaints instituted
by the NBI, regardless of where the alleged
crime was committed. (Sec. 2, A.M. No. 1807-05-SC);
B. Sandiganbayan, in cases falling within its
jurisdiction. (Sec. 3, Rule VIII, 2018 Revised
Internal Rules of the Sandiganbayan).
REMEDIAL LAW
Requirements for filing an application for
PHDO
1. A motion by the complainant in a criminal
complaint filed before the office of the city or
provincial prosecutor;
2. Preliminary determination of probable cause
based on the complaint and attachments;
3. Application filed by a prosecutor or the Office of
the Ombudsman in the name of the People of
the Philippines; and
4. Complaint-affidavit and its attachments,
personal details, passport number and a
photograph of the respondent, if available.
(Sec. 3, A.M. No. 18-07-05-SC)
Grounds for Issuance
1. There must be a determination by the judge or
a Division of the Sandiganbayan, in whose
court the application is filed, that there is:
i. Probable cause, and
ii. High probability that respondent will depart
from the Philippines to evade arrest and
prosecution of crime.
2. The judge or Division shall personally examine
under oath or affirmation, in the form of
searching questions and answers in writing, the
applicant and the witnesses he or she may
produce on facts personally known to them and
attaching to the record their sworn statements.
(Sec. 4, A.M. No. 18-07-05-SC)
Preliminary Finding of Probable Cause
The finding of probable cause by the judge or
Division, which is solely based on the complaint
and is specifically issued for the purpose of issuing
the PHDO, is without prejudice to the resolution of
the prosecutor or the Office of the Ombudsman.
(Sec. 5, A.M. No. 18-07-05-SC).
Dismissal of the criminal complaint by the
prosecutor or the Office of the Ombudsman for
lack of probable cause is a ground for the lifting
of the PHDO with the RTC or Division that issued
the order. (Id.)
The case with the court that issued the PHDO, on
motion of the prosecutor, shall be consolidated
with the court where the criminal information is
filed. (Id.)
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REMEDIAL LAW
Form and Validity of PHDO
The PHDO shall contain:
1. The name of the respondent;
2. His or her alleged crime;
3. The time and place of its commission;
4. The name of the complainant; and
5. A copy of the application, personal details,
passport number, photograph of the
respondent, if available. (Sec. 6, A.M. No. 1807-05-SC)
The order shall be valid until lifted by the issuing
court as may be warranted by the result of the
preliminary investigation. (Id.)
Lifting of the Order
Upon verified motion of respondent before the
issuing court for the temporary lifting of PHDO
alleging that:
a. Based on the complaint-affidavit and the
evidence that he or she will present, there is
doubt that probable cause exists to issue the
PHDO; or
b. He or she is not a flight risk. (Sec. 7, A.M. No.
18-07-05-SC)
The lifting of the PHDO is without prejudice to the
resolution of the preliminary investigation against
the respondent. (Id.)
Bond
Respondent is required to post a bond in an
amount to be determined by the court, subject to
the conditions set forth in the Order granting the
temporary lifting of the PHDO. (Sec. 8, A.M. No.
18-07-05-SC)
————- end of topic ————-
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SPECIAL CIVIL
ACTIONS
Remedial Law
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V. SPECIAL CIVIL ACTIONS
TOPIC OUTLINE UNDER THE 2020 SYLLABUS
V. SPECIAL CIVIL ACTIONS
A. NATURE OF SPECIAL CIVIL ACTIONS
B. DISTINGUISH: ORDINARY CIVIL ACTIONS
AND SPECIAL CIVIL ACTIONS
C. JURISDICTION AND VENUE
D. INTERPLEADER
1. Requisites for interpleader
2. When to file
3. Dismissal
E. DECLARATORY RELIEF AND SIMILAR
REMEDIES
1. Who may file action
2. Requisites of action for declaratory relief
3. When court may refuse to make judicial
declaration
4. Conversion to ordinary action
5. Proceedings considered as similar
remedies
a. Reformation of an instrument
b. Consolidation of ownership
c. Quieting of title to real property
F. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
COMELEC AND COA
1. Distinctions in the application of Rule 65 to
judgments of the Commission on Elections
and Commission on Audit and the
application of Rule 65 to other tribunals,
persons and officers
G.
CERTIORARI,
PROHIBITION,
AND
MANDAMUS
1. Definitions and distinctions
2. Requisites
3. When petition for certiorari, prohibition and
mandamus is proper
4. Injunctive relief
5. Distinguish: certiorari, appeal by certiorari,
and Article VIII, Section 1 of the
Constitution
6. Distinguish: prohibition, mandamus, and
injunction
7. When and where to file petition
8. Exceptions to filing of motion for
reconsideration before filing petition
9. Reliefs petitioner is entitled to
10. Acts or omissions of first-level/Regional
Trial Courts in election cases
11. Where to file petition
12. Effects of filing of an unmeritorious petition
REMEDIAL LAW
H. QUO WARRANTO
1. Distinguish: quo warranto under the Rules
of Court and quo warranto under the
Omnibus Election Code
2. When government commences an action
against individuals or associations
3. When individual may commence an action
4. Judgment in quo warranto action
I. EXPROPRIATION
1. Matters to allege in complaint for
expropriation
2. Two stages in every action for
expropriation
3. When plaintiff can immediately enter into
possession of the real property
4. New system of immediate payment of
initial just compensation
5. Defenses and objections
6. Order of expropriation
7. Ascertainment of just compensation
8. Appointment
of
commissioners;
commissioner's report; court action upon
commissioner's report
9. Rights of plaintiff upon judgment and
payment
10. Effect of recording of judgment
J. FORECLOSURE OF REAL ESTATE
MORTGAGE
1. Kinds of foreclosure
a. Judicial foreclosure
b. Extrajudicial foreclosure
2. Need for special power of attorney
3. Authority to foreclose extrajudicially
4. Procedure
a. Where to file
b. Where to sell
c. Posting requirement
d. Publication requirement
i. Sufficiency
of
newspaper
publication
ii. Need for republication in case of
postponement
iii. Personal notice to the mortgagor
when and when not needed
5. Possession by purchaser of foreclosed
property
6. Remedy of debtor if foreclosure is not
proper
7. Redemption
a. Who may redeem
b. Amount of redemption price
c. Period for redemption
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d. Effect of pendency of action for
annulment of sale
8. Writ of possession
a. Ministerial duty of the court
b. Enforcement against third parties
c. Pendency of action for annulment of
sale
K. PARTITION
1. Who may file complaint; who should be
made defendants
2. Matters to allege in the complaint for
partition
3. Two stages in every action for partition
4. Order of partition and partition by
agreement
5. Partition by commissioners; appointment
of commissioners, commissioner's report;
court action upon commissioner's report
6. Judgment and its effects
7. Partition of personal property
8. Prescription of action
9. When partition is not allowed
L. FORCIBLE ENTRY AND UNLAWFUL
DETAINER
1. Definitions and distinction
2. Distinguish: forcible entry, unlawful
detainer, accion publiciana, and accion
reivindicatoria
3. Jurisdiction in accion publiciana and
accion reivindicatoria
4. Who may institute the action and when;
against whom the action may be
maintained
5. Pleadings allowed
6. Action on the complaint
7. When demand is necessary
8. Preliminary injunction and preliminary
mandatory injunction
9. Resolving defense of ownership
10. How to stay the immediate execution of
judgment
11. Prohibited pleadings and motions
M. CONTEMPT
1. Kinds of contempt
2. Purpose and nature of each
3. Remedy against direct contempt; penalty
4. Remedy against indirect contempt; penalty
5. How
contempt
proceedings
are
commenced
6. Acts deemed punishable as indirect
contempt
7. When imprisonment shall be imposed
8. Contempt against quasi-judicial bodies
A. NATURE OF SPECIAL CIVIL ACTIONS
Being a civil action, a special civil action is one by
which a party sues another for the enforcement or
protection of a right, or the prevention or redress
of a wrong. (Rule 1, Sec. 3[a])
Both are governed by the rules for ordinary civil
actions. However, the fact that an action is subject
to special rules other than those applicable to
ordinary civil actions is what gives a civil action its
special character. (Id,).
As a general rule, however, the rules governing
ordinary civil actions shall apply in special civil
actions insofar as they supplement or are not
inconsistent with the provisions governing the
latter actions. (Id.).
B. DISTINGUISH: ORDINARY CIVIL
ACTIONS AND SPECIAL CIVIL ACTIONS
ORDINARY CIVIL
ACTIONS
Governed by rules for
ordinary civil actions.
Must be based on a
cause
of
action
meaning an act or
omission has violated
the rights of another.
May be filed initially in
either the MTC or RTC
depending upon the
jurisdictional amount
or the nature of the
action.
Ordinary civil actions
are
filed
as
complaints.
SPECIAL CIVIL
ACTIONS
Generally governed
by rules for ordinary
civil
actions
but
subject to special
rules.
Not necessarily based
on a cause of action,
as in certain special
civil actions:
1. Declaratory relief –
no actual violation
of rights;
2. Interpleader – no
interest in the
subject matter.
There
are
some
special civil actions
which
cannot
be
commenced in the
MTC, i.e. petitions for
certiorari, prohibition
and mandamus.
Some special civil
actions are filed as
complaints, but others
are filed as petitions.
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Special Civil Actions Initiated by a Complaint
i. Interpleader (Rule 62);
ii. Expropriation (Rule 67);
iii. Foreclosure of REM (Rule 68);
iv. Partition (Rule 69); and
v. Forcible Entry and Unlawful Detainer (Rule 71).
Special Civil Actions Initiated by a Petition
i. Declaratory Relief (Rule 63);
ii. Review of Adjudication of COMELEC/COA
(Rule 64);
iii. Certiorari (Rule 65);
iv. Prohibition (Rule 65);
v. Mandamus (Rule 65);
vi. Quo Warranto (Rule 66);
vii. Contempt (Rule 71).
Special Civil Actions With Two Stages
1. Expropriation; and
2. Partition.
C. JURISDICTION AND VENUE
See above table in Part II. JURISDICTION.
D. INTERPLEADER
Nature of Interpleader
An 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 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. (Ocampo v. Tirona, G.R. No. 147812, 2005)
Purpose of Remedy
An interpleader complaint may be filed by a lessee
against those who have conflicting claims over the
rent due for the property leased. This remedy is for
the lessee to protect himself or herself from
“double vexation in respect of one liability. He or
she may file the interpleader case to extinguish his
or her obligation to pay rent, remove him or her
from the adverse claimants’ dispute, and compel
REMEDIAL LAW
the parties with conflicting claims to litigate among
themselves. (Lui Enterprises v. Zuellig Pharma,
G.R. No. 193494, 2014)
1. REQUISITES FOR INTERPLEADER
1. There must be two or more claimants with
adverse or conflicting interests to a property
in the custody or possession of the plaintiff;
2. The plaintiff in an action for interpleader 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;
3. The subject matter of the adverse claims must
be one and the same. (Rule 62, Sec. 1).
Who May File the Complaint for Interpleader
The person against whom the conflicting claims
are made. (Id.).
Examples
1. Warehouseman – must have custody of goods
claimed to be owned by two or more persons
who do not have the same interest;
2. Insurer – when confronted by conflicting claims
on the proceeds of an insurance policy
3. Lessee – may be filed by a lessee against
those who have conflicting claims over the rent
due for the property leased; or
4. Debtor – when confronted by two or more
persons who do not present the same interest
and are claiming the right to collect
2. WHEN TO FILE
When To File The Complaint
General Rule: Within a reasonable time after a
dispute has arisen without waiting to be sued by
either of the contending claimants.
The stakeholder should use reasonable diligence
to bring the contending claimants to court—that is,
by filing the interpleader suit within a reasonable
time after a dispute has arisen without waiting to
be sued by either of the contending parties.
Otherwise, he may be barred by laches or undue
delay. (Wack Wack Golf and Country Club v. Won,
G.R. No. L-23851, 1976).
A stakeholder’s action of interpleader is too late
when filed after judgment has been rendered
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against him in favor of one of the contending
claimants, especially where he had notice of the
conflicting claims prior to the rendition of the
judgment and neglected the opportunity to implead
the adverse claimants in the suit where judgment
was entered. (Id.)
Exception: Where the stakeholder acts with
reasonable diligence in view of environmental
circumstances, the remedy is not barred. (Id.)
Alternatively: If an action has been filed, in lieu of
an interpleader, one can file an answer with
allegations of conflicting claims and a third-party
complaint impleading the other party.
Order to Interplead
Upon the filing of the complaint, an order requiring
the conflicting claimants to interplead with one
another shall be issued. (Sec. 2, Rule 62)
If the interests of justice so require, the court may
direct in the said order that the subject matter be
paid or delivered to the court. (Id.)
Service of Summons
Summons shall be served upon the conflicting
claimants together with:
1. A copy of the complaint, and
2. The order. (Sec. 3, Rule 62)
Answer and Other Pleadings
Each claimant shall file his answer setting forth his
claim within fifteen (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.
(Sec. 5, Rule 62; Lui Enterprises, Inc. v. Zuellig
Pharma Corp., G.R. No. 193494, 2014)
3. DISMISSAL
Motion to Dismiss
Within the time for filing an answer (30 days), each
claimant may file a motion to dismiss. (Sec. 4, Rule
62)
REMEDIAL LAW
Other Pleadings That May be Filed in an
Interpleader
i. Counterclaims (PDIC v. CA, G.R. No. 126911,
2003);
ii. Cross-claims;
iii. Third-party complaints; and
iv. Responsive pleadings thereto as provided in
the Rules (Arreza v. Diaz, Jr., G.R. No. 133113,
2001).
When Court Shall Determine and Adjudicate
Claims
The court shall proceed to determine their
respective rights and adjudicate their claims after
the pleadings of the conflicting claimants have
been filed and pre-trial has been conducted. (Sec.
6, Rule 62)
Lien Upon the Subject Matter
General Rule: The following shall constitute a lien
or charge upon the subject matter:
1. Docket and other lawful fees paid by the party
who filed the complaint for interpleader; and
2. Costs and litigation expenses (Sec. 7, Rule 62)
Exception: Unless otherwise ordered by the
court. (Id.)
E. DECLARATORY RELIEF AND SIMILAR
REMEDIES
Declaratory Relief
The purpose of the action is to secure an
authoritative statement of the rights and
obligations of the parties under a statute, deed,
contract, etc., for their guidance in its enforcement
or compliance and not to settle issues arising from
its alleged breach. (Tambunting, Jr., v. Sps.
Sumabat, G.R. No. 144101, 2005)
1. WHO MAY FILE THE ACTION
Persons Interested in the Following Subject
Matters May File a Petition
a. If the subject matter is a deed, will, contract or
other written instrument, any person interested
in the same may file the petition; or
b. If the subject matter is a statute, executive
order or regulation, ordinance, or any other
governmental regulation, any person whose
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rights are affected by the same may file the
petition. (Sec. 1, Rule 63)
2.
The enumeration of the subject matter is
exclusive. (Mangahas v. Paredes, G.R. No.
157866, 2007)
3.
Who Shall Be Impleaded As Parties
All persons who have or claim any interest, which
would be affected by the declaration shall be made
parties. (Sec. 2, Rule 63)
4.
No declaration shall, except as otherwise provided
in these Rules, prejudice the rights of persons not
parties to the action. (Id.)
6.
Rule 63, Section 2 contemplates a situation where
there are other persons who would be affected by
the declaration, but were not impleaded as
necessary parties, in which case the declaration
shall not prejudice them. The non-joinder of
necessary parties is not a jurisdictional defect. It
may be a ground for dismissal under Rule 63, Sec.
5. (Baguio Citizens Action Inc. v. The City Council
of Baguio, G.R. No. L-27247, 1983).
The following shall also be notified and entitled to
be heard:
1. Solicitor General
a. Where the action involves the validity of a
statute, executive order or regulation, or any
other governmental regulation (Sec. 3, Rule
63); or
b. Where the unconstitutionality of a local gov’t
ordinance is alleged (Sec. 4, Rule 63)
2. Local government unit prosecutor or attorney,
where the action involves the validity of a local
government ordinance. (Sec. 4, Rule 63).
A notary public who is not a party to the contract is
not entitled to file declaratory relief. None of his
rights or duties thereunder need be declared.
(Tadeo v. Prov. Fiscal of Pangasinan, G.R. No. L16474, 1962).
2. REQUISITES OF AN ACTION FOR
DECLARATORY RELIEF
5.
instrument, statute, executive order or
regulation, or ordinance;
The terms of said documents and the validity
thereof are doubtful and require judicial
construction;
There must have been no breach of the
documents in question;
There must be an actual justiciable controversy
or the ripening seeds of one between persons
whose interests are adverse;
The issue must be ripe for judicial
determination; and
Adequate relief is not available through other
means or other forms of action or proceeding.
(Almeda v. Bathala Marketing, G.R. No.
150806, 2008)
No Actual Breach of Instrument
An action for declaratory relief presupposes that
there has been no actual breach of the instruments
involved or of the rights arising thereunder. It may
be entertained before the breach or violation of the
statute, deed or contract to which it refers. It is a
form of action that will set controversies at rest
before they lead to a repudiation of obligations, an
invasion of rights, and a commission of wrongs.
(Aquino vs. Municipality of Malay, Aklan,, G.R. No.
211356, 2014)
Actual Justiciable Controversy
A justiciable controversy refers to an existing case
or controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely
anticipatory. (Velarde v. SJS, G.R. No. 159357,
2004)
It is one which is definite and concrete, touching
on all the legal relations of parties having adverse
legal interests. (Imbong v. Ochoa, G.R. No.
204819, 2014)
It must be a real and substantial controversy
admitting of a specific relief through a decree of
conclusive character. (Province of North Cotabato
v. GRP Peace Panel on Ancestral Domain, G.R.
No. 183591, 2008).
Requisites under Jurisprudence
1. The subject matter of the controversy must be
a deed, will, contract or other written
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Ripeness of Issue
a. When litigation is inevitable; or
b. When administrative remedies have been
exhausted. (Bryan Telecommunications v.
Republic, G.R. No. 161140, 2007)
Under the facts of the case, there is a threatened
litigation in the immediate future, which litigation is
imminent and inevitable unless prevented by the
declaratory relief sought. (Tolentino v. Board of
Accountancy, G.R. No. L-3062, 1951)
3. WHEN COURT MAY REFUSE TO MAKE
JUDICIAL DECLARATION
General Rule: The Court has the discretion, motu
proprio or upon motion, to refuse to grant a
declaratory relief when:
a. The decision would not terminate the
uncertainty or controversy which gave rise to
the action; or
b. The declaration or construction is not
necessary
and
proper
under
the
circumstances. (Sec. 5, Rule 63)
Exception: If the action is for reformation of
instruments, consolidation of ownership, and
quieting of title – the court must decide the case.
(Sec. 1, Rule 63)
Other Instances When the Action for
Declaratory Relief Will Not Lie:
i. Action to obtain a judicial declaration of
citizenship (no real controversy; other
remedies available) (Lim v. Republic, G.R. No.
L-30424, 1971);
ii. Action to establish illegitimate filiation and
actions to determine hereditary rights (lack of
actual existing legal right – hereditary rights are
inchoate since the parent in question is still
alive) (Edades v. Edades, G.R. No. L-8964,
1956);
iii. Court decisions (not among subject matters
listed; violates res judicata; see Tanda v. Alday,
G.R. Nos. L-9322-23, 1956);
iv. Decisions of quasi-judicial agencies (for the
same reason as court decisions) (Monetary
Board v. Philippine Veterans Bank, G.R. No.
189571, 2015);
v. Action to resolve a political question;
REMEDIAL LAW
vi. Those determinative of the issues rather than
the construction of definite status, right or
relation;
vii. Where the terms of the assailed ordinance are
not ambiguous or of doubtful meaning;
viii.
Where the contract or statute subject of
the case had already been breached; (SJS v.
Lina, G.R. No. 160031, 2008);
ix. When the purpose of the action is merely to
seek an advisory opinion from the court on a
moot question. (RIANO, 2016 ed.).
4. CONVERSION TO 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.
(Sec. 6, Rule 63)
An action for declaratory relief presupposes that
there has been no actual breach of the instruments
involved or of the rights arising thereunder. It may
be entertained before the breach or violation of the
statute, deed or contract to which it refers. It is a
form of action that will set controversies at rest
before they lead to a repudiation of obligations, an
invasion of rights, and a commission of wrongs.
(Aquino v. Municipality of Malay, Aklan, G.R. No.
211356, 2014)
The law does not require that there shall be an
actual pending case. It is sufficient that there is a
breach of the law, an actionable violation to bar a
complaint for declaratory relief. (Borja v. Villadolid,
G.R. No. L-1897, 1949)
Third Party Complaint Not Allowed
In a third party-complaint, the third-party plaintiff is
supposed to seek contribution, indemnity,
subrogation, or any other relief from the third-party
defendant in respect of the claim of the plaintiff
against him. This relief cannot be granted because
in a declaratory relief proceeding, the court is
confined merely to the interpretation of the terms
of a contract. (Commissioner of Customs v.
Cloribel, G.R. No. L-21036, 1977)
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Writ of Execution Not Allowed
The judgment does not entail an executory
process since generally, other than a declaration
of such rights and duties, as these are understood
in ordinary civil actions, are not sought by the
proponent. However, the court can grant such
other affirmative relief as may be warranted by the
evidence if the complaint is sufficient to make out
a case for specific performance or recovery of
property with claims for damages and the
defendants did not raise such issue in the trial
court to challenge the remedy availed of. (Adlawan
v. IAC, G.R. No. 73022, 1989)
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F. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
COMELEC AND COA
Scope
The Rule shall govern the review of judgments and
final orders or resolutions of the Commission on
Elections (COMELEC) en banc and the
Commission on Audit (COA). (Sec. 1, Rule 64)
The judgments, final orders, or resolutions must be
issued in the exercise of adjudicatory power or
quasi-judicial power of the:
5. PROCEEDINGS CONSIDERED AS
SIMILAR REMEDIES.
COMELEC (Ibrahim v. COMELEC, G.R. No.
192289, 2013).
Reformation of an Instrument
An action for reformation is not an action brought
to reform a contract, but to reform the instrument
evidencing the contract. (New Civil Code, Art.
1359)
Rule 64 does not cover rulings of the
COMELEC in the exercise of its administrative
powers (Querubin, et al. v. COMELEC, G.R.
No. 218787, 2015).
Consolidation of Ownership
The action brought to consolidate ownership is not
for the purpose of consolidating the ownership of
the property in the person of the vendee or buyer
but for the registration of the property. (Cruz v.
Leis, G.R. No. 125233, 2000; New Civil Code, Art.
1607)
Quieting of Title to Real Property
An action to quiet title to real property is for the
removal or prevention of a cloud of title to real
property or any interest by reason of any
instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective,
voidable or unenforceable and may be prejudicial
to said title. (New Civil Code, Art. 476)
Jurisdiction over actions to quiet title to real
property depends on the amount or value of the
property.
Note: In Actions Similar to Declaratory Relief, the
court is bound to render judgment. In petitions for
declaratory relief, the court may refuse to exercise
the power to declare rights and to construe
instruments. (Sec. 5, Rule 63)
Note: Review is only of judgments, final orders
or resolutions of the COMELEC en banc. (Sec.
2, Rule 64)
A letter and notice that are mere issuances
issued by the COMELEC are not subject to
review by the Supreme Court, as the power of
the Court to review the decisions of the
COMELEC is limited only to final decisions,
rulings and orders of the COMELEC en banc
rendered in the exercise of its adjudicatory or
quasi-judicial power. (Diocese of Bacolod v
COMELEC, G.R. No. 205728, 2015)
COA (Dela Llana v. COA, G.R. No. 180989,
2012)
Decisions and orders of the COA are
reviewable by the court via a petition for
certiorari. However, these refer to decisions
and orders which were rendered by the COA in
its quasi-judicial capacity. Promulgations of the
COA, under its quasi-legislative or rule-making
power, is not reviewable by certiorari. (Id.)
As a rule, public funds may not be disbursed
absent an appropriation of law or other specific
statutory authority. Commonwealth Act No.
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327, as amended by Presidential Decree No.
1445, requires that all money claims against
government must first be filed before the
Commission on Audit, which, in turn, must act
upon them within 60 days. Only when the
Commission on Audit rejects the claim can the
claimant elevate the matter to this Court on
certiorari and, in effect, sue the state. (Roxas v.
Republic Real Estate Corp., G.R. Nos. 208205
& 208212, 2016)
Constitutional Basis: Unless otherwise
provided by this Constitution or by law, any
decision, order or ruling of each Commission
may be brought to the Supreme Court on
certiorari by the aggrieved party within 30 days
from receipt of a copy thereof. (Phil. Const. art.
IX-A, Sec. 7).
Note: Rule 64 does not apply to the CSC
because of R.A. No. 7902 – the CA has
reviewing power over the CSC. (see Rule 43,
Sec. 3).
Application of Rule 65 Under Rule 64
The aggrieved party may bring a judgment or final
order or resolution of the COMELEC en banc and
COA to the SC on certiorari under Rule 65 and not
on appeal by certiorari under Rule 45. (Sec. 2,
Rule 64)
This refers to Rule 65 as an independent civil
action, and not as a mode of appeal.
The phrase “except as hereinafter provided”
specifies that any petition for certiorari filed under
this rule (Rule 64) follows the same requisites as
those of Rule 65 except for certain provisions
found only in Rule 64, such as the time given to file
the petition. (The Law Firm of Laguesma,
Magsalin, Consulta and Gastardo v. COA, G.R.
No. 185544, 2015)
1. DISTINCTION IN THE APPLICATION OF
RULE 65 AS TO JUDGMENTS OF THE
COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS, AND OFFICERS
RULE 64
RULE 65
Applies to final orders, May be used against
judgments
or interlocutory orders of
resolutions.
COA/COMELEC.
Directed
against Directed against a
COMELEC en banc tribunal, board, or
and COA.
officer
exercising
judicial or quasi-judicial
functions.
Must be filed within 30 Must be filed within 60
days from notice of days from notice of
judgment or resolution. judgment or resolution.
If
a
motion
for
reconsideration (MR)
or motion for new trial
(MNT) were denied,
the aggrieved party
may file the petition
within the remaining
period, but which shall
not be less than 5 days
in any case.
If MR or MNT were
denied, the aggrieved
party will have another
60 days within which to
file the petition (fresh
60-day period).
All annexes must be Only the order assailed
certified.
must be certified.
Time to File Petition
The petition shall be filed within 30 days from
notice of the judgment, final order, or resolution.
(Phil. Const. art. IX, § 7)
The filing of a motion for new trial or
reconsideration, if allowed under the procedural
rules of the COMELEC and COA, interrupts the
period.
If the motion is denied, petition may be filed within
the remaining period or within 5 DAYS from notice
of denial, whichever is longer. (Sec. 3, Rule 64).
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Note: The fresh period rule (“Neypes rule”) is not
applicable. (Lokin v. COMELEC, G.R. No. 193808,
2012).
Rule on Motion for Reconsideration as PreRequisite
General Rule: The prerequisite filing of a Motion
for Reconsideration with the COMELEC en banc
is mandatory before said final en banc decision
may be brought to the Supreme Court on
Certiorari. (Ambil Jr. v. COMELEC, G.R. No.
143398, 2000)
Failure to file a motion for reconsideration results
in the dismissal of the petition.
Exceptions:
a. To prevent a miscarriage of justice;
b. Need for relief is extremely urgent and
certiorari is the only adequate remedy;
c. The decision or resolution is a nullity;
d. When the issue involves the principle of social
justice of the protection of labor. (ABS-CBN v.
COMELEC, G.R. No. 133486, 2000)
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Order to Comment
If the petition is sufficient in form and substance,
the respondents shall be ordered to file their
comments within 10 days from notice thereof.
(Sec. 6, Rule 64)
Outright Dismissal of Petition:
a. If the complaint is insufficient in form and
substance
b. If the complaint was filed manifestly for delay
c. If the questions raised are too unsubstantial to
warrant further proceedings (Sec. 6, Rule 64)
Effect of Filing of Petition
General Rule: The filing of a petition for certiorari
shall not stay the execution of the judgment or final
order or resolution sought to be reviewed.
Exception: When the Supreme Court directs
otherwise upon such terms as it may deem just.
(Sec. 8, Rule 64)
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G. CERTIORARI, PROHIBITION, AND MANDAMUS
1. DEFINITIONS AND DISTINCTIONS
Certiorari, Prohibition and Mandamus - Defined and Distinguished:
CERTIORARI
PROHIBITION
MANDAMUS
To Whom It is Directed Against
Directed against an entity or Directed against an entity or Directed against an entity or
person exercising judicial or person exercising judicial, quasi- person exercising ministerial
quasi-judicial functions.
judicial, or ministerial functions.
functions.
Grounds
Entity or person is alleged to have
acted:
a. Without jurisdiction;
b. In excess of jurisdiction; or
c. With grave abuse of discretion
amounting to lack or excess of
jurisdiction.
Entity or person is alleged to be
acting or threatening to act:
a. Without jurisdiction;
b. In excess of jurisdiction; or
c. With grave abuse of discretion
amounting to lack or excess of
jurisdiction.
Entity or person is alleged to
have:
a. Neglected a ministerial duty;
or
b. Excluded another from a right
or office.
Purpose
To annul or nullify a proceeding.
To have the respondent desist To have the respondent do the
from further proceeding; from act required as a duty; and pay
exercising jurisdiction/ power.
damages.
Coverage
Covers discretionary acts.
Covers
discretionary
ministerial acts.
and Covers ministerial acts.
Nature of Remedy
Corrective remedy: To correct a Negative
and
preventive Affirmative or Positive: If the
lack of or usurpation of remedy: To restrain or prevent performance of a duty is ordered.
jurisdiction.
usurpation of jurisdiction.
Negative: If desistance from
excluding another from a right or
office is ordered.
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Certiorari and Appeal by Certiorari - Distinguished:
CERTIORARI AS A MODE OF APPEAL
(RULE 45)
CERTIORARI AS A SPECIAL CIVIL ACTION
(RULE 65)
A continuation of the appellate process over the An original action and not a mode of appeal.
original case.
Seeks to review final judgments or final orders.
May be directed against an interlocutory order of
the court or where no appeal or plain, speedy and
adequate remedy is available in the ordinary course
of law.
Raises only questions of law (if directly from RTC), Raises questions of jurisdiction — that is, whether
or law, fact or both (if from other courts).
a tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without
jurisdiction or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction.
Filed within 15 days from notice of judgment or final Filed within 60 days from notice of judgment, order
order appealed from, or of the denial of petitioner’s or resolution sought to be assailed and in case a
motion for reconsideration or new trial.
motion for reconsideration or new trial is timely filed,
the 60-day period is to be counted from notice of
denial of said motion.
Extension of 30 days may be granted for justifiable Extension is allowed only in exceptional and
reasons.
meritorious cases.
Does not require a prior motion for reconsideration. Motion for reconsideration is a condition precedent,
subject to exceptions.
Stays the judgment appealed from.
Does not stay the judgment or order subject of the
petition, unless enjoined or restrained.
Parties are the original parties with the appealing
party as the petitioner and the adverse party as the
respondent without impleading the lower court or its
judge.
The tribunal, board, officer exercising judicial or
quasi-judicial functions is impleaded as primary
respondent; with adverse party in the lower court (if
any) as the private respondent.
Filed only with SC.
May be filed with SC, CA, Sandiganbayan, or RTC
(observe hierarchy of courts).
SC may deny the decision motu propio on the
ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
The court may dismiss the petition if it finds the
same patently without merit or prosecuted
manifestly for delay, or if the questions raised
therein are too unsubstantial to require
consideration. In such event, the court may award
in favor of the respondent treble costs solidarily
against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions
under Rules 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or
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CERTIORARI AS A MODE OF APPEAL
(RULE 45)
CERTIORARI AS A SPECIAL CIVIL ACTION
(RULE 65)
measures on erring lawyers for patently dilatory and
unmeritorious Petitions for Certiorari.
X
Liberal Construction: When a Rule 45 Petition
is Considered a Rule 65 Petition, and ViceVersa
The Court has treated a petition for certiorari under
Rule 65 as petition for review on certiorari under
Rule 45 particularly
1. If the petition for certiorari was filed within the
reglementary period within which to file a
petition for review on certiorari;
2. When errors of judgment are averred;
3. When there is sufficient reason to justify the
relaxation of the rules as when there is a
significant issue of jurisdiction; and
4. When all requisites are present (RIANO (2016),
pp. 230-231; City of Manila v. Grecia-Cuerdo,
G.R. No. 175723, 2014)
2. REQUISITES
RUNDOWN
CERTIORARI,
MANDAMUS
OF
REQUISITES
PROHIBITION,
FOR
AND
Requisites for Certiorari
1. Tribunal, board, or officer exercises judicial or
quasi-judicial functions;
2. Tribunal, board, or officer has acted without or
in excess of jurisdiction or with grave abuse of
discretion; and
3. There is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law.
(Rosales v. ERC, G.R. No. 201852, 2016)
Requisites for Prohibition
1. Respondent inferior court, tribunal, corporation,
board, officer, or other person is exercising
judicial, quasi-judicial, or ministerial functions;
2. Respondent acted without or in excess of
jurisdiction, or acted with grave abuse of
discretion; and
3. There must be no appeal or other plain,
speedy, and adequate remedy. (Carlito Montes
v. CA, G.R. No. 143797, 2006)
Requisites for Mandamus
1. There must be a clear legal right or duty;
2. Respondent must be exercising a ministerial
duty — a duty which is absolute and imperative,
and involves merely its execution;
3. Respondent
unlawfully
neglects
the
performance of its duty or unlawfully excludes
another from the use and enjoyment of a right
or office to which such other is entitled; and
4. No appeal or other plain, speedy, and
adequate remedy in the ordinary course of law.
(De Castro v. JBC, G.R. No. 191002, 2010)
NOTE: All petitions must be accompanied with a
certified true copy of the judgment or order subject
thereof. It must be an authenticated original
thereof and not a mere photocopy that must be
attached to the petition filed. (REGALADO, 2008
ed.)
COMMON REQUISITES FOR CERTIORARI,
PROHIBITION, AND MANDAMUS
Aggrieved Party
The term "person aggrieved" is not to be construed
to mean that any person who feels injured by the
lower court's order or decision can question the
said court's disposition via certiorari.
In a situation wherein the order or decision being
questioned underwent adversarial proceedings
before a trial court, the "person aggrieved" referred
to under Section 1 of Rule 65 who can avail of the
special civil action of certiorari pertains to one who
was a party in the proceedings before the lower
court. (Siguion Reyna Montecillo and Ongsiako
Law Offices v. No. Chionlo-Sia, G.R. No. 181186,
2016).
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Judicial or Quasi-Judicial Functions
General Rule: Respondent tribunal, board, or
officer is performing judicial or quasi-judicial
functions
The exercise of judicial function consists of the
power to determine what the law is and what the
legal rights of the parties are, and then to
adjudicate upon the rights of the parties.
The term quasi-judicial function applies to the
action and discretion of public administrative
officers or bodies that are required to investigate
facts or ascertain the existence of facts, hold
hearings, and draw conclusions from them as a
basis for their official action and to exercise
discretion of a judicial nature. (Ongsuco v. Hon.
Malones, G.R. No. 182065, 2009)
Issuance by BSP-Monetary Board of CB Circulars
is done in the exercise of an executive function
and thus may not be the subject of certiorari
petition. (Advocates for Truth in Lending v. BSP
Monetary Board, G.R. No. 192986, 2013)
The Secretary of Finance in issuing Revenue
Regulations based on SEC. 244 of the NRIC is in
the exercise of quasi-legislative functions, hence
outside the scope of certiorari. (Clark Investors
Association v. Secretary of Finance, G.R. No.
200670, 2015)
Exception: However, with respect to the SC,
certiorari and prohibition may be issued to correct
errors of jurisdiction by a person or body even if
not exercising judicial, quasi-judicial, or ministerial
functions where the matter is of “transcendental
importance to the nation.” (Villanueva v. JBC, G.R.
No. 211833, 2015)
Ministerial Acts / Functions vs. Discretionary
Acts / Functions
MINISTERIAL ACTS
DISCRETIONARY
/ FUNCTIONS
ACTS / FUNCTIONS
One which an officer The law imposes a
or tribunal performs in duty upon a public
a given state of facts, officer and gives him
in
a
prescribed the right to decide how
manner, in obedience or when the duty shall
to the mandate of a be performed. (Mallari
legal authority, without
regard to or the
exercise of his own
judgment upon the
propriety
or
impropriety done.
v.
Banco
Filipino
Savings & Mortgage
Bank,
G.R.
No.
157600, 2008).
Jurisdictional Errors
a. Without jurisdiction – Respondent does not
have the legal power to determine the case
(Sps. Dacudao v. SOJ, G.R. No. 186056,
2013).
b. Excess of jurisdiction – Respondent, being
clothed with the power to determine the case,
oversteps his authority as determined by law.
c. Grave abuse of discretion – generally refers
to a "capricious or whimsical exercise of
judgment as is equivalent to lack of
jurisdiction." The abuse of discretion must be
patent and gross so as to amount to an evasion
of a positive duty or a virtual refusal to perform
a duty enjoined by law, or to act at all in
contemplation of law. (Atty. Allan Hilbero v.
Florencia Morales, Jr., G.R. No. 198760,
2017).
No Appeal, Plain, Speedy and Adequate
Remedy
It is the inadequacy, and not the mere absence of
all other legal remedies and the failure of justice
without the writ, that must usually determine the
propriety of certiorari or prohibition. A remedy is
plain, speedy, and adequate if it will promptly
relieve the petitioner from the injurious effects of
the judgment, order, or resolution of the lower
court of agency. (Morales v. CA, G.R. Nos.
217126-27, 2015).
Certiorari is a remedy of last resort. It is not
available if the party still has another speedy and
adequate remedy (such as appeal) available.
(Tolentino v. COMELEC, G.R. Nos. 218536,
2016).
An adequate remedy has been defined as a
remedy which is equally beneficial, speedy and
sufficient, not merely a remedy which at some time
in the future will bring about a revival of the
judgment of the lower court complained of in the
certiorari proceeding, but a remedy which will
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promptly relieve the petitioner from the injurious
effects of that judgment and the acts of the inferior
court or tribunal. (PSALM v. Maunlad Homes, Gr
No. 215933, 8 Februrary 2017).
3. WHEN PETITION FOR CERTIORARI,
PROHIBITION OR MANDAMUS IS PROPER
Preliminary Considerations
The hierarchy of courts should serve as a
general determinant of the appropriate forum for
Rule 65 petitions. The concurrence of jurisdiction
among the Supreme Court, Court of Appeals and
the Regional Trial Courts to issue writs of
certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction does not give the
petitioners the unrestricted freedom of choice of
forum. (Kalipunan ng Damayang Mahihirap, Inc. v.
Robredo, G.R. No. 200903, 2014)
In order to properly proceed against the
respondent, an aggrieved party [under Rule 65]
must choose the proper remedy. The choice
depends on which function – quasi-judicial, quasilegislative, and administrative – the respondent
has discharged in doing the assailed action.
(Capalla v. COMELEC, G.R. No. 201112, 2012,
Bersamin, J., concurring)
Certiorari, Prohibition, or Mandamus as an
Independent Action
An application for certiorari is an independent
action which is not part or a continuation of the trial
which resulted in the rendition of the judgment
complained
of.
Impliedly,
a
petition
for certiorari pending before a higher court does
not necessarily become moot and academic by a
continuation of the proceedings in the court of
origin. (Sps. Juan Diaz v. Jose Diaz, G.R. No.
135885, 2000).
CERTIORARI
A petition for certiorari is proper when all the
requisites are complied with.
Certiorari Not Available When Appeal is
Available
General Rule: Where appeal is available to the
aggrieved party, certiorari will not prosper, even if
the ground is grave abuse of discretion. (Freedom
REMEDIAL LAW
from Debt Coalition v. MWSS, G.R. No. 173004,
2007)
When the remedy by appeal had already been lost
due to the petitioner’s own neglect or error in the
choice of remedies, certiorari cannot lie. The two
remedies are mutually exclusive. (MERALCO v.
CA, G.R. No. 88396, 1990).
Exceptions:
Even when appeal is available and is the proper
remedy, SC has allowed a writ of certiorari:
a. Where the appeal does not constitute a speedy
and adequate remedy;
b. Where the orders were also issued either in
excess of or without jurisdiction;
c. For certain special considerations, as public
welfare or public policy;
d. Where, in criminal actions, the court rejects
rebuttal evidence for the prosecution as, in
case of acquittal, there could be no remedy;
e. Where the order is a patent nullity; and
f. Where the decision in the certiorari case will
avoid future litigations. (REGALADO, 2008 ed.)
Even when the period for appeal has lapsed, SC
has allowed a writ of certiorari:
a. When appeal is lost without the appellants’
negligence;
b. When public welfare and the advancement of
public policy dictates;
c. When the broader interest of justice so
requires;
d. When the writs issued are null and void; and
e. When the questioned order amounts to an
oppressive exercise of judicial authority.
(Sunbeam Convenience Foods v. CA, G.R. No.
50464, 1990)
A Motion for Reconsideration is Required
Before Filing a Petition for Certiorari
General Rule: A motion for reconsideration is a
condition sine qua non for the filing of a petition for
certiorari. Its purpose is to grant an opportunity for
the court to correct any actual or perceived error
attributed to it by re-examination of the legal and
factual circumstances of the case.
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Exceptions:
a. Where the order is a patent nullity, as where
the court a quo has no jurisdiction;
b. Where the questions raised in the certiorari
proceedings have been duly raised and passed
upon by the lower court, or are the same as
those raised and passed upon in the lower
court;
c. Where there is an urgent necessity for the
resolution of the question and any further delay
would prejudice the interests of the government
or of the petitioner or the subject matter of the
action is perishable;
d. Where, under the circumstances, a motion for
reconsideration would be useless;
e. Where petitioner was deprived of due process
and there is extreme urgency for relief;
f. Where, in a criminal case, relief from an order
of arrest is urgent and the granting of such relief
by the trial court is improbable;
g. Where the proceedings in the lower court are a
nullity for lack of due process;
h. Where the proceeding were ex parte or in
which the petitioner had no opportunity to
object; or
i. Where the issue raised is one purely of law or
where public interest is involved. (Republic of
the Philippines v. Abdulwahab A. Bayao, G.R.
No. 179492, 2013)
Certiorari is Not a Proper Remedy to Appeal a
Motion to Quash
General Rule: The proper action is to continue
with the trial and reiterate the special defenses
invoked in the motion to quash.
Exception: Certiorari is proper when there is
grave abuse of discretion. (Lazarte v.
Sandiganbayan, G.R. No. 180122, 2009)
Certiorari is the Proper Remedy to Appeal a
Declaration of Presumptive Death
The Family Code was explicit that the court’s
judgment in summary proceedings, such as the
declaration of presumptive death of an absent
spouse, shall be immediately final and executory.
An aggrieved party may, nevertheless, file a
petition for certiorari under Rule 65 to question any
abuse of discretion amounting to lack or excess of
jurisdiction that transpired. (Republic v. Cantor,
G.R. No. 184621, 2013)
REMEDIAL LAW
RTC ruled in favor of private respondents. Upon
the special civil action of certiorari, the CA
dismissed the petition on the ground of lack of
jurisdiction. Petitioner filed another special civil
action of certiorari assailing the CA’s resolution.
Petitioner should have filed a petition for review
on certiorari under Rule 45, which is a continuation
of the appellate process over the original case.
However, in accordance with the liberal spirit
pervading the Rules of Court and in the interest of
substantial justice, this Court has, before, treated
a petition for certiorari as a petition for review on
certiorari, particularly:
a. If the petition for certiorari was filed within the
reglementary period within which to file a
petition for review on certiorari;
b. When errors of judgment are averred; and
c. When there is sufficient reason to justify the
relaxation of the rules. (The City of Manila v.
Hon. Grecia-Cuerdo, G.R. No. 175723, 2014)
Small Claims – Certiorari Is Proper
Considering the final nature of a small claims case
decision under Sec. 23 of the Rules 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 v. Mondejar, G.R. No. 200804, 2014)
Certiorari and Not Mandamus May be Issued
Against the JBC
Although the JBC does not fall within the scope of
a tribunal, board, or officer exercising judicial or
quasi-judicial functions, in the process of selecting
and screening applicants, the JBC neither acted in
any judicial or quasi-judicial capacity nor assumed
unto itself any performance of judicial or quasijudicial prerogative. However, since the
formulation of guidelines and criteria, including the
policy that the petitioner now assails, is necessary
and incidental to the exercise of the JBC’s
constitutional mandate, a determination must be
made on whether the JBC has acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy.
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(Villanueva v. Judicial & Bar Council, G.R. No.
211833, 2015)
The writ of mandamus does not issue to control or
review the exercise of discretion or to compel a
course of conduct, which, it quickly seems to us,
was what the petitioner would have the JBC do in
his favor. The function of the JBC to select and
recommend nominees for vacant judicial positions
is discretionary, not ministerial. (Id.).
of filing a motion to quash. (Aurillo v. Rabi, G.R.
No. 120014, 2002);
c. Where the acts sought to be enjoined were
performed after the injunction suit is brought.
(Versoza v. Martinez, G.R. No. 119511, 1998)
When Prohibition Proper
Prohibition is the remedy where a motion to
dismiss is improperly denied. (Enriquez v.
Macadaeg, G.R. No. L-2422, 1949)
PROHIBITION
MANDAMUS
Respondent in Prohibition
An inferior court, tribunal, corporation, board,
officer, or other person, exercising
a. Judicial;
b. Quasi-judicial; or
c. Ministerial functions. (Sec. 2, Rule 65)
Respondent in Mandamus
An inferior court, tribunal, corporation, board,
officer, or other person neglecting the performance
of an act which the law specifically enjoins as a
duty or unlawfully excluding another from the use
and enjoyment of a right or office to which the
petitioner is entitled. (Sec. 3, Rule 65).
When what is at contest is the power and authority
of a private organization, composed of several
members-organizations, which power and
authority were vested to it by its own members,
prohibition will not lie. The definition and purpose
of a writ of prohibition excludes the use of the writ
against any person or group of persons acting in a
purely private capacity, and the writ will not be
issued against private individuals or corporations
so acting. (Destileria Limtuaco & Co. v. Advertising
Board of the Philippines, G.R. No. 164242, 2008)
Accomplished Facts / Fait Accompli
General rule: A petition for prohibition is intended
to prohibit or prevent FUTURE acts done without
authority or jurisdiction, and is not proper for acts
already accomplished.
Exceptions:
Even when an act is already fait accompli, SC has
allowed a writ of prohibition:
a. Where it would prevent the creation of a new
province by those in the corridors of power who
could avoid judicial intervention and review by
merely speedily and stealthily completing the
commission of such illegality. (Tan v. Comelec,
G.R. No. 73155, 1986);
b. Where it would provide a complete relief by not
only preventing what remains to be done but by
undoing what has been done, such as
terminating a preliminary investigation instead
Nature and Purpose of Mandamus
The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would
be obstructed; and, regularly, issues only in cases
relating to the public and to the government;
hence, it is called a prerogative writ. To preserve
its prerogative character, mandamus is not used
for the redress of private wrongs, but only in
matters relating to the public. (Uy Kiao Eng. v.
Nixon Lee, G.R. No. 176831, 2010).
Mandamus Proper When There is the
Existence of a Clear Legal Right
A clear legal right is a right which is indubitably
granted by law or inferable as a matter of law. If
the right is clear and the case is meritorious,
objections raising merely technical questions will
be disregarded. But where the right sought to be
enforced is in substantial doubt or dispute,
mandamus cannot issue. (Angeles v. Secretary of
Justice, G.R. No. 142549, 2010)
A Petition For Mandamus Was Considered
Proper In The Following Instances:
a. To compel the Ombudsman to dismiss a case
which was pending before him for 6 years,
which was considered a violation of the
constitutional duty to “promptly act on
complaints file. (Angchangco v. Ombudsman,
G.R. No. 122728, 1997);
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b. To compel a judge to issue a writ of execution
pending appeal of a decision in an ejectment
case, where the defendant appellant failed to
make the necessary deposits of rentals
pending appeal. (Vda. De Carbungco v.
Amparo, G.R. No. L-2245, 1949)
Mandamus Not Proper in the Following Cases:
i. To enforce purely contractual obligations;
ii. When there is another speedy and adequate
remedy;
iii. To compel a school to readmit students, and/or
to confer academic honors, in violation of the
school’s academic freedom. (University of San
Agustin v. CA, G.R. No. 100588; University of
San Carlos v. CA, G.R. No. 79237 1988);
iv. To compel the performance of an act already
done, such as to include one’s name in the list
of graduates and allow him to take part in the
graduation exercises, as the same was moot
since the graduation ceremony had already
pushed through. (Cudia v. The Superintendent
of the PMA, G.R. No. 211362, 2015)
Mandamus May Not be Used to Compel
Discretionary Duties; Exception
General Rule: Mandamus is applicable to a
ministerial duty.
Exception: As for discretionary duties, it can be
used to the extent of requiring performance of a
discretionary duty to act but not to require
performance of such duty in a particular manner.
(BF Homes v. NWRC, G.R. No. 78529, 1987)
Exceptions to the Exception: The respondent
can be ordered to act in a particular manner to
control discretion when there is:
a. Grave abuse of discretion;
b. Manifest injustice; or
c. Palpable excess of authority. (M.A. Jimenez
Enterprises v. Ombudsman, G.R. No. 155307,
2011)
4. INJUNCTIVE RELIEF
The court in which the petition is filed may issue
orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties pending such proceedings.
The petition shall not interrupt the course of the
principal case, unless a temporary restraining
REMEDIAL LAW
order or a writ of preliminary injunction has been
issued, enjoining the public respondent from
further proceeding with the case. (Sec. 7, Rule 65)
The public respondent shall proceed with the
principal case within 10 days from the filing of a
petition for certiorari with a higher court or tribunal,
absent a temporary restraining order or a
preliminary injunction, or upon its expiration.
Failure of the public respondent to proceed with
the principal case may be a ground for an
administrative charge. (Sec. 7, A.M. No. 07-7-12SC)
5. DISTINGUISH: CERTIORARI, APPEAL BY
CERTIORARI, AND ARTICLE VIII, SECTION
1 OF HE CONSTITUTION
See above discussion on Certiorari vs. Appeal by
Certiorari.
Certiorari and Prohibition are Appropriate
Remedies to Contest the Validity of Acts of
Any Branch or Agency of Government, Under
Article VIII Section 1 of The Constitution
Judicial power includes duty of the courts to
determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government. (Ermita v.
Aldecoa-Delorino, G.R. No. 177130; 2011;
Francisco v. Toll Regulatory Board, G.R. No.
166910, 2010)
6. DISTINGUISH: PROHIBITION,
MANDAMUS, AND INJUNCTION
Injunction Distinguished from Prohibition and
Mandamus
PREVENTIVE/PROHI
BITORY
PROHIBITION
INJUNCTION
An order requiring a A
judgment
party litigant to refrain commanding
a
from a particular act.
tribunal, corporation,
board, officer, or
person,
whether
exercising
judicial,
quasi-judicial
or
ministerial functions,
to desist from further
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Ordinary civil action;
may deal with factual
or legal issues.
Directed against a
litigant.
MANDATORY
INJUNCTION
An order requiring a
party
litigant
to
perform a particular
act in order to restore
the
last
actual
peaceable
uncontested
status
which preceded the
pending controversy.
Ordinary civil action;
may deal with factual
or legal issues.
Directed against a
litigant.
proceeding in the
action
or
matter
specified
therein
because
it
acts
without or in excess of
its or his jurisdiction or
with grave abuse of
discretion amounting
to lack or excess of
jurisdiction. (Sec. 2,
Rule 65)
Special civil action;
refers to issues of
jurisdiction only.
Directed against a
tribunal, corporation,
board, or officer.
PROHIBITION
A
judgment
commanding
a
tribunal, corporation,
board,
officer,
or
person,
unlawfully
neglecting
the
performance of an act
which
the
law
specifically enjoins as
a duty resulting from
an office, trust, or
station, or unlawfully
excluding
another
from the use and
enjoyment of a right or
office to which such
order is entitled to do
the act required to be
done to protect the
rights of the petitioner.
(Sec. 3, Rule 65)
Special civil action;
refers to issues of
jurisdiction only.
Directed against a
tribunal, corporation,
board, or officer.
Mandamus and Injunction Distinguished
MANDAMUS
Special civil action.
INJUNCTION
Ordinary civil action.
Directed against a Directed
tribunal, corporation, litigant.
board, or officer.
Purpose is for the
tribunal, corporation,
board, or officer to
perform a ministerial
and legal duty.
against
a
Purpose is to either
compel the defendant
to
refrain
from
performing an act or to
perform any act - not
necessarily a legal and
ministerial duty.
7. WHEN AND WHERE TO FILE PETITION
When to file petition
Within 60 days from notice of the assailed
judgment, order or resolution.
In case a motion for reconsideration or a motion
for a new trial is timely filed: within 60 days from
notice of the denial of said motion. (Sec. 4, Rule
65)
Where to File Petition
a. If the petition relates to the acts or omissions of
a lower court, corporation, board, or officer or
person: RTC exercising jurisdiction over the
territorial area as defined by the SC.
b. If the petition relates to the acts or omissions of
a quasi-judicial agency: Cognizable only by the
CA;
c. To the Sandiganbayan or the Court of Appeals,
whether or not in aid of the court’s appellate
jurisdiction. (Id.)
Note:
R.A.
10660
provides
that
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 Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986: Provided, that the
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jurisdiction over these petitions shall not be
exclusive of the Supreme Court.
Hierarchy of Courts
General Rule: The filing of a petition under Rule
65 must follow the hierarchy of courts. Thus, direct
resort to the Supreme Court will not be
entertained.
Exception: Unless the redress desired cannot be
obtained in the appropriate courts or where
exceptional and compelling circumstances justify
availment of a remedy within and calling for the
exercise of the Supreme Court’s primary
jurisdiction. (Santiago v. Vasquez, G.R. Nos.
99289-90, 1993)
8. EXCEPTIONS TO FILING OF MOTION
FOR RECONSIDERATION BEFORE FILING
PETITION
General Rule: A motion for reconsideration is a
sine qua non requirement before filing a petition
under Rule 65. (Romy’s Freight Service v. Castro,
G.R. No. 141637; Nuque v. Aquino, G.R. No.
193058, 2015)
Exceptions:
a. Where the order questioned is a patent nullity;
b. Where the questions raised in the certiorari
proceeding have already been duly raised and
passed upon by the lower court or are the same
as those raised and passed upon in the lower
court;
c. Where there is an urgent necessity for the
resolution of the question;
d. Where an MR would be useless or is
prohibited;
e. Where petitioner is deprived of due process;
f. Where, in a criminal case, relief from an order
of arrest is urgent and the granting of such relief
by the trial court is improbable;
g. Where the issue raised is one purely of law or
where public interest is involved;
h. Where the proceedings in the lower court are a
nullity for lack of due process;
i. Where the proceeding was ex parte or in which
the petitioner had no opportunity to object; and
j. Where the subject matter of the action is
perishable.
REMEDIAL LAW
9. RELIEFS PETITIONER IS ENTITLED TO
The primary reliefs available to petitioner are:
a. Petition of certiorari – That the judgment, order,
or resolution subject of the petition for certiorari
be annulled or modified. (Sec. 1, Rule 65);
b. Petition for prohibition – That the respondent
be ordered to desist from further proceedings
in the action or matter specified in the petition
for prohibition. (Sec. 2, Rule 65); or
c. Petition for mandamus – That the respondent,
immediately or at some other time to be
specified by the court, do the act required to be
done to protect the petitioner’s rights, and to
pay the damages sustained by the petitioner by
reason of the respondent’s wrongful acts (Sec.
3, Rule 65)
Common to certiorari, prohibition and mandamus
– The court may grant such incidental reliefs as
law and justice may require. It may also award
damages. (Sec. 9, Rule 65).
This may include provisional remedies, final
injunctions, mandatory injunctions to return the
parties to the status quo, etc.
10. ACTIONS OR OMISSIONS OF FIRSTLEVEL/REGIONAL TRIAL COURTS IN
ELECTION CASES
In election cases involving an act or omission of
the MTC or RTC, the petition for certiorari shall be
filed exclusively with the COMELEC, in aid of its
appellate jurisdiction. (Sec. 4, Rule 65)
11. WHERE TO FILE PETITION
See above discussion on When and Where to File
Petition.
12. EFFECTS OF FILING OF AN
UNMERITORIOUS PETITION
The court may dismiss the petition for being
unmeritorious—that is [PPQ]:
a. It is patently without merit;
b. It is prosecuted manifestly for delay; or
c. If the questions raised therein are too
unsubstantial to require consideration.
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In this case, the court may award treble costs in
favor of the respondent solidarily against the
petitioner and counsel. It may also subject the
counsel to administrative actions under Rules 139
and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory
and unmeritorious petitions for certiorari. (Sec. 8,
Rule 65 as amended by A.M. No. 07-7-12-SC)
H. QUO WARRANTO
Quo Warranto
A petition for quo warranto is a proceeding to
determine the right of a person to the use or
exercise of a franchise or office and to oust the
holder from its enjoyment, if his claim is not wellfounded, or if he has 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
a right to the undisturbed possession of the office.
(Velasco v. Belmonte, G.R. No. 211140, 2016)
Object of Quo Warranto
1. Determine the right of a person to use or
exercise of a franchise or office; and
2. Oust the holder from its enjoyment, if his claim
is not well-founded, or if he has forfeited his
right to enjoy the office. (Tecson v. COMELEC,
G.R. No. 161434, 2004)
Nature of a Quo Warranto
1. It is a direct, not a collateral attack, on the
matter assailed.
2. It is a proceeding against a public officer, not in
his official capacity, because no official power
or right or duty is sought, but because the
officer’s title to the office is being questioned.
3. It is a proceeding of a public nature filed by a
prosecuting attorney ex officio such as by the
Solicitor General or fiscal. (But it is personal in
nature as to the person claiming office)
REMEDIAL LAW
Who May Commence an Action for Quo
Warranto
A. The Solicitor General or a public prosecutor
[MANDATORY quo warranto];
a. Upon direction of the President;
b.