CIVIL PROCEDURE
INTRODUCTION
The first thing that we will take up in Civil Procedure are basic concepts. We are going to discuss the legal
concept of courts. As you will know, whenever we talk of procedural law, we have no choice but to involve
courts in our discussion.
Let’s try to have a mental picture of courts. If I (Dean Iñigo) say ‘courts’, please tell me the scene that
comes into your mind. What do you see? There is a table, a gavel, there is someone sitting there. Then below,
there are lawyers sitting down. That is how everybody pictures a court. But actually, what was pictured out was
a courtroom and not a court.
Similar example: How can you picture a corporation? A corporation, as you know in Persons, is a juridical
entity. It is a creature of the law. It is a person under the law but it has no physical existence. But what you see
in a corporation is a building and people who are running the office business. Well, that is the office of the
corporation.
A corporation cannot run without people running it. But a corporation can own properties, kaya you see the
building, the office, the equipments there. The president or the vice-president are the officers of the
corporation. But the officers are not the corporation, they run the affairs of the corporation. Ganoon din ang
court. A court has no physical existence, only a legal one.
Q: What is a court?
A: A court is an entity or body vested with a portion of the judicial power. (Lontok vs. Battung, 63
Phil. 1054)
Q: Why ‘portion’ only?
A: This is because the Constitution provides that “the judicial power shall be vested in one Supreme Court
(SC) and in such other lower courts as may be established by law.” (Art. VIII, Section 1, 1987 Constitution.
The reason that the law creates different courts is to divide the cases or judicial power among them so that
one court may not be burdened with so many cases. So, judicial power is not exercised only by one court, but
by several courts. It is like a cake. You slice the cake into parts – this part is for you, this part is mine. So, kanyakanya tayo ng trabaho. You cannot put the burden only in one court.
For example, you want to sue your debtor for not paying a loan. You mean to tell me that you will go to the
SC? All cases in the Philippines will have to filed there? NO. You cannot do it. You have to start from certain
courts in you city or municipality.
Ngayon, pag-sinabi mo kung saan ako mag-file, sa Regional Trial Court (RTC) ba? O sa Municipal Trial Court
(MTC)? Of course, depende yan on how much you are claiming. If you are claiming so much, dito ka. If you claim
is lower, dito ka naman. Why is that? Because each has its own work. Each one has its own portion – what is
yours is yours, what is mine is mine.
Thus, each court has its own jurisdiction and may only try cases within its jurisdiction. No court has all the
power of the judiciary but only a portion of it. So there is a division of labor.
Just as corporations cannot act without its officers, a court cannot function without a judge. But do not say
that the court and the judge mean the same thing. The judge is the person or officer who presides over a court.
Q: Distinguish court from judge.
A: The following are the distinctions:
1.) Court is the entity, body, or tribunal vested with a portion of the judicial power, while judge is the
person or officer who presides over a court. Judges are human beings – they die, they resign, they
retire, they maybe removed. The court continues to exist even after the judge presiding over it
ceases to do so.
2.) The two concepts may exist independently of each other, for there may be a court without a judge
or a judge without a court. (Pamintuan vs. Llorente, 29 Phil. 342)
EXAMPLE: The present Supreme Court (SC), the justices presiding over it are not the same
justices who presided it in the early part of this century yet the Court in some decisions states that
“as early 1905, ‘WE’ have already ruled such as such…” Why do they use ‘WE’? They are talking
about the court, they are not talking about themselves. The court is continuous. It does not die
alongside with the justices who presided on it.
Q: Classify courts in general.
A: Generally, courts may be classified as:
1.) Superior Courts and First-Level courts (inferior courts);
2.) Courts of Original jurisdiction and Courts of Appellate jurisdiction;
3.) Civil Courts and Criminal Courts;
4.) Courts of law and Courts of equity;
5.) Constitutional Courts and Statutory Courts.
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
Q: Distinguish superior courts from inferior courts.
A: SUPERIOR COURTS, otherwise known as courts of general jurisdiction, are those which take cognizance of
all kinds cases, whether civil or criminal, and possess supervisory authority over lower courts.
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FIRST-LEVEL COURTS (inferior courts), otherwise known as courts of special or limited jurisdiction, are those
which take cognizance of certain specified cases only. (14 Am. Jur. 249)
Q: What courts are superior or inferior?
A: It DEPENDS on what viewpoint you are looking. If you are looking from the viewpoint of the Constitution,
there is only one superior court – the Supreme Court.
From the real viewpoint, the Court of Appeals (CA) maybe inferior to the SC but it is a superior court for it
exercises supervision over RTC. In the same manner that the RTC might be inferior to the SC and the CA but it
has also power of supervision over MTC. The jurisdiction of the RTC is varied. It is practically a jack of all trade.
The RTC has also the power of supervision over MTC.
A superior court may therefore handle civil, criminal cases while an inferior court may try specified cases
only. The SC, CA including the RTC are considered as superior courts.
The MTC is a first-level (inferior) court so that its power is limited to specified cases despite of the law which
expanded the jurisdiction of the MTC. It is already at the bottom. Wala ng under pa sa kanya.
In 1996 Bar: Explain the hierarchy of courts in the Philippines. Practically, the judicial level is being asked by
the examiner.
ORIGINAL COURT vs. APPELLATE COURT
Q: Distinguish original court from appellate court.
A: ORIGINAL COURTS are those where a case is commenced, while APPELLATE COURTS are those where a
case is reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in an original court. But the case does not
necessarily end there. You may bring the case to the appellate court which has the power to change the
decision of the original court.
Q: Is the SC an original or appellate court?
A: The SC is both an original and an appellate court. Some people have the impression that you
cannot file a case there for the first time – that you have to file it somewhere else, then doon (SC) mo i-akyat.
But when we study the jurisdiction of the SC, we will be able to know that it is not only an appellate court, but
also an original court. The SC has original jurisdiction on cases of certiorari, prohibition, mandamus, etc. There
are certain cases where one may file directly to the SC.
Q: Is the CA an original or appellate court?
A: The same is true with the CA. It is both original and appellate court. (Section 9, BP 129) When we
study the jurisdiction of the CA, you will see that it is both an original and an appellate court. There are cases
which are elevated to it from the RTC, but there are also cases which are filed there for the first time.
Q: How about the RTC? Is the RTC an original or appellate court?
A: The RTC is also both original and appellate court. You can file certain cases there for the first time,
and there are also decisions of the MTC which are appealable to the RTC.
Q: How about the MTC? Is the MTC an original or appellate court?
A: The MTC however, is a 100% original court. It is the lowest court in the hierarchy. There are no cases
appealed to it. There is no such animal as barangay court. The barangay captains do not decide
cases, they only conciliate.
CIVIL COURTS vs. CRIMINAL COURTS
Q: Distinguish civil courts from criminal courts.
A: CIVIL COURTS are those which take cognizance of civil cases only, while CRIMINAL COURTS are those
which take cognizance of criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd Ed., p. 301)
All the courts in the Philippines are both civil and criminal courts. They can handle both types of cases. The
SC decides civil and criminal cases. The same thing with the CA, RTC and MTC.
So, in the Philippines, there is no such thing as a 100% criminal court or civil court. Unlike before, during the
70's there are some special courts which were existing but were abolished by BP 129. There was the old Circuit
Criminal Court. As the name implies, it is purely a criminal court.
But with the abolition of those special courts, all their powers were transferred to the present RTC. Right
now, there is no such thing as a 100% civil court or a 100% criminal court. So, all our courts are both civil and
criminal courts at the same time.
COURTS OF LAW vs. COURTS OF EQUITY
Q: Distinguish Courts of Law from Courts of Equity.
A: COURTS OF LAW are tribunals only administering the law of the land, whereas COURTS OF EQUITY
are tribunals which rule according to the precepts of equity or justice, and are sometimes called “courts of
conscience.” (Ballentine’s Law Dict., 2nd Ed., p. 303)
Courts Of Law dispose cases according to what the law says – I will decide your case by what the law says.
Yan ang court of law! When we say Courts Of Equity, it adjudicates cases based on the principles of equity.
Principle of equity means principles of justice, fairness, fair play.
Q: Are the Philippines courts, courts of law? Or courts of equity? Do they decide cases based on what the
law says? or, do they decide cases based on the principle of justice and fairness?
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A: In the Philippines, our courts are both courts of law and of equity. In the case of substantive law,
there is a thin line which divides the principle of law from the principle of equity because principles of equity are
also found in the principles of law. Equity is what is fair and what is just and equitable. Generally, what is legal is
fair.
As a matter of fact under the Civil Code, when the law is silent, you decide it based on what is just and fair.
Kaya nga may kasabihan na EQUITY FOLLOWS THE LAW. In the Philippines you cannot distinguish
sometimes the principle of law and the principle of equity because principles of equity are also written in the
law. Example: The principle of estoppel, laches or solutio indebiti. One cannot say that they are purely principles
of equity since they are also found in our law. Under the Civil Code, when there is no applicable law, courts still
have to decide according to customs and general principles.
Example: ESTOPPEL. Estoppel is an equitable doctrine – that it is not fair that you disown your own
representation after misleading somebody. But if you look a the Civil Code, meron mang chapter diyan ba! –
estoppel! So if you apply estoppel, you cannot say that you are applying a principle not found under
the law.
Example: LACHES – the half-brother of prescription – if you delay a certain right then you must have no
right. That is more of equity, rather than of law.
Example: SOLUTIO INDEBITI. No one should enrich himself at the expense of another. That is a principle
of equity. But if you look at the Civil Code, it's there!
The SC, when deliberating, focuses more on justice and equity – where reason can always be found. The SC
once said that equity follows the law. In the case of :
ALONZO vs. INTERMEDIATE APPELLATE COURT
May 28, 1987, J. Cruz
HELD: “The question is sometimes asked, in serious inquiry or in curious conjecture, whether we
are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer
justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither
because we are a court both of law and of justice. We apply the law with justice for that is our
mission and purpose in the scheme of our Republic.”
So the SC described it self both as a court of law and court of equity. I have already talked with so many
justices of the SC before. And I asked them on how do they deliberate on cases when somebody files an appeal
or petition. They told me, if you want to convince the SC to hear your case… because the tendency of some
lawyers is that they will file their petition and they will cite the law. Meaning, backed-up by statutory provisions
ba. A justice of the SC told me that that is a wrong approach. Do not tell us what is the law. We know more law
than you do! When you file a petition, fairness must be on your side! Because when we deliberate and we agree
that your side seems to be the correct one, to decide on your favor is more than just to decide on the other
side. Then, we will even look for the law to support our decision. So, you don't have to tell us what is the law,
we will look for it. And if there is no law, we will make it for you, by interpreting… because we are a court more
of equity than of law. But when we look on the equity, we will look for the law and chances are, there is the law
to follow.
CONSTITUTIONAL COURTS vs. STATUTORY COURTS
Q: Distinguish Constitutional Courts from Statutory Courts.
A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY COURTS are
created by law or by the legislature.
In our country, there is only one Constitutional court – the Supreme Court. Even the
Sandiganbayan is not considered a Constitutional court because it was not created by the
Constitution directly. The 1973 Constitution ordered Congress to create Sandiganbayan. It was law that
created Sandiganbayan (PD 1486). There is a provision in the 1973 Constitution which says, “There should
be created a Sandiganbayan.”
The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to
abolish the said courts but it can never abolish the Supreme Court.
So there is only one Constitutional court. All the rest, from the CA down and all other special courts, are only
creatures of Congress. In political law, the power to create carries with it the power to abolish. That is why, BP
129 abolished all existing courts at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC were created. That was
the judicial reorganization of 1980 under BP 129. But there is only court which the Batasan Pambansa could not
touch – the Supreme Court.
They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong tabla
eh. Congress is also created by the Constitution. So if you want to abolish the SC, you must call for a
constitutional convention to change the Constitution.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, you must know that the courts of justice have what we call inherent
powers. Just like the State have certain inherent powers, whether written or not, these things are understood to
have them – Police power, power of taxation, and power of taxation.
Courts have also inherent powers. Their very existence automatically necessitates the existence of these
powers. Now, that was already asked in the Bar before – what are the inherent powers of the court?
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Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court of the provides:
Section 5. Inherent powers of courts. Every court shall have the power:
(a) to preserve and enforce order in its immediate presence;
(b) to enforce order in proceedings before it, or before a person or persons
empowered to conduct a judicial investigation under its authority;
(c) to compel obedience to its judgments orders, and processes, and to the lawful
orders of a judge out of court, in a case therein;
(d) to control, in furtherance of justice, the conduct of its ministerial officers, and
of all other persons in any manner connected with a case before it, in every manner
appertaining thereto;
(e) to compel the attendance of persons to testify in a case pending therein;
(f) to administer or cause to be administered oaths in a case pending therein,
and in all. other cases where it may be necessary in the existence of its powers;
(g) to amend and control its process and orders so as to make them conformable
to law and justice;
(h) to authorize a copy of a lost or destroyed pleading or other paper to be filed
and used instead of the original, and to restore, and supply deficiencies in its
records and proceedings.
There are many powers enumerated. Some of them are common sense. Every court has the power to see to
it that everything of his order is enforced; to compel obedience to his order. Common sense yan. You are inutile
if you cannot even enforce your own judgment! So I've been telling some judges here, eh. Sometimes we talk
about this: they say, it seems that I don't have the power under the Rules of Court. It's beyond my power. I
made a decision but I cannot see how was it enforced.
Parang pampalakas-loob ang Rule 135, Section 5 because you can see there the powers that you do not
know you have. These are inherent eh – hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil ka – I have
the power to decide but I do not know how to enforce my decision. That is a sign of impotence (Charles,
pinaringgan ka ni Dean!). As a matter of fact, the next section (Section 6, Rule 135) tells us how to carry out
your judgment. If you do not know how to carry out your judgment because the law is silent, Section 6 says,
look for a way. Hanapan mo ng paraan!
SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the decision, how
do I enforce? Well, usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to enforce? For example a judge has rendered a
decision, and the law is silent on how to enforce it, do you mean to say that the order is unenforceable because
the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is
conferred on a court or a judicial officer, all auxiliary writs, processes and all other
means to carry it into effect maybe employed by such court or officer; and if the
procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law or these rules, any suitable process or mode of proceeding may
be adopted which appears conformable to the spirit of said law or rules.
What Section 6 is trying to say is that when you have the power to decide, you have the power to
enforce. And if the law is silent, you have to think how to do it. Be creative. Provided you conform with the
spirit of the rule. So you do not make the order useless simply because there is no rule. In other words, try to
look for a way on how to enforce you judgment. That is part of your power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that I want to emphasize before we leave this subject of court is Section 3 of the Interim
Rules.
Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in Cebu or
Manila? Or only in Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking writ or
processes? You have to distinguish what kind of writ or process you are talking about.
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction issued by a regional trial court may be enforced in any part of the
region.
b) All other processes whether issued by the RTC or MetTC, MTC, and MTC may
be served anywhere in the Philippines, and, the last three cases, without a
certification by the judge of the RTC.
Q: What is the area of enforceability of writs and processes of the courts?
A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are talking
about:
a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction,
it can be enforced anywhere within the region. So at least, RTC can enforce it within the
region and it cannot enforce those writs outside the region.
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EXAMPLE: If you are illegally detained, you can ask the court to issue a writ of habeas corpus.
Now, a person is detained in Bansalan and the family is here in Davao City. They filed a petition for
habeas corpus in Makilala, North Cotabato. Makilala is in Region 12 and the RTC of Bansalan is part of
the 11th judicial region. Thus, the judge in Makilala cannot issue the writ of habeas corpus due to the
fact that Bansalan belongs to the 11th judicial region while Makilala is in the 12th judicial region. The
RTC of Tandag, Surigao is Region 12 and therefore can issue a writ of habeas corpus to be enforced in
Makilala which is hundreds of miles away because they are of the same judicial region. And yet the
RTC of Bansalan cannot issue a writ to be enforced in Makilala, North Cotabato, which is the next
town, because that is not part of their region. The law is very clear: writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction issued by a trial court may be enforced in
any part of the region.
b) Section 3 further says, all other writs are enforceable anywhere in the Philippines. Suppose
the MTC issues a warrant for the arrest of the accused in the criminal case, and he fled to
Baguio City, such warrant can be enforced there. This includes summons, writs of execution
or (search warrants).
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS – law; 2.) DICO – to speak, or to say. So,
in effect, when you say jurisdiction, literally translated, it means, “I speak by the law.” It means that you are
saying “I speak with authority” because when you invoke the law, then your act is authorized. Even in old times
when the representatives of the king or the sovereign will try to arrest somebody or will try to enter your house,
they open up in the name of the law. They will always invoke “in the name of the law.”
So when you say, “I speak by the law” I will do it in the name of the law. It connotes authority or power. You
cannot be wrong. How can you be wrong if you are doing it in the name of the law? So more or less jurisdiction
simply means authority or power. So more or less that is the whole concept of jurisdiction. It simply means
authority or power. That is precisely what jurisdiction is all about.
JURISDICTION simply means the power of the court to hear try and decide a case. In its complete
aspect, jurisdiction includes not only the powers to hear and decide a case, but also the power to
enforce the judgment. (14 Am. Jur. 363-364)
Q: What is the effect if the court has no jurisdiction?
A: If a court has no jurisdiction, it has no power or authority to try a case and that is a concept you already
know in Criminal Procedure. Without jurisdiction, the trial is null and void as well as the judgment.
Let’s go to a criminal case. Can you file an information for murder before the MTC? Or can you file an
information for slight physical injuries before the RTC? There is something wrong there. If a slight physical injury
case is filed against you in the RTC, what will you do? If I’m the lawyer of the accused why will I allow my client
to be arraigned and to be tried when everything is null and void. Kapoy-kapoy lang ako. So I’ll file a motion to
quash under Rule 117. That’s the same thing in civil cases. If you file a civil case before a court that has no
jurisdiction, then it can be dismissed for lack of jurisdiction.
JURISDICTION vs. EXERCISE OF JURISDICTION
Now, let us not confuse jurisdiction with certain terms related to it.
Q: Distinguish jurisdiction from exercise of jurisdiction.
A: The authority to decide a case, not the decision rendered, is what makes up jurisdiction. It does not
depend upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Where
there is jurisdiction over of the person and subject matter, the resolution of all other questions arising in the
case is but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245)
In other words, JURISDICTION is the authority. If I have no authority, I cannot act. And if I have
authority, I can act. Now, if the court has authority, it will try the case and render judgment.
Now, what the court will do later, like try the case and render judgment is merely an EXERCISE
OF ITS JURISDICTION. So the trial and judgment are all products of the exercise of jurisdiction. You
cannot talk of exercise without having first the authority. It is a useless procedure when you say “I will exercise
something which I do not have.”
Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?
A: Definitely, a court acting as such may commit errors or mistakes. That is why the action of the court can
be questioned later in a higher court. A court can commit an error which is either an error of jurisdiction or an
error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused, Ken Sur, files a motion to quash because
MTC has no jurisdiction over cases of murder. Eh, ‘yong judge iba man ‘yong libro niya, “No, I have jurisdiction.”
So the court denied the motion to quash. Meaning, the judge has decided to assume jurisdiction. So, meaning
from the very start mali na. Now what do you call that? When the court without authority assumes
authority over the case that is called ERROR OF JURISDICTION – the court committed an error of
jurisdiction.
EXAMPLE: Suppose the case for murder is filed in the RTC where the court has jurisdiction. So walang mali,
everything is correct. But in the course of the trial, you cannot avoid mistakes being committed like for
example, the court misinterpreting the provision of the RPC saying that this is a requirement, this is not a
requirement for the crime. Meaning misapplication or misinterpretation of the RPC as well as misinterpretation
of the rules of evidence – wrong interpretation of the law. And the accused was convicted but actually tingin mo
mali man ito, di ba! Under the law, this elements was not considered or this element was considered as present.
Do you say the decision of the judge is null and void? NO, the judgment is valid kaya lang mali. So, you
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do not say the court committed an error in the exercise of jurisdiction, and that is called an ERROR
OF JUDGMENT. And that was also asked in the bar.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.
A: The following are the distinctions:
1.) When a court acquires jurisdiction over the subject matter, the decision or order on all other
questions arising in the case is but an exercise of jurisdiction; Errors which the court may
commit in the exercise of such jurisdiction are merely ERRORS OF JUDGMENT; whereas,
When a court takes cognizance of a case over the subject matter of which it has no jurisdiction, the
court commits an ERROR OF JURISDICTION.
2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,
ERRORS OF JUDGMENT are reviewable by appeal.
Meaning, when a court has no jurisdiction but insists in handling the case, that is a mistake by the trial
court. It is called an error of jurisdiction.
Now, suppose a court has jurisdiction over the case but the decision is wrong – it applied the wrong
provision of the law, or interpretation of evidence. This is not an error of jurisdiction because the court has
authority. But in the exercise of its jurisdiction, it committed several errors. This is now what you call an error of
judgment.
Q: What is the use of distinguishing error of jurisdiction from error of judgment?
A: The difference is in the remedy taken. Actually, it is still an error. If it is an error, it can be corrected
by a higher court. The importance, however, as we will see later, is that there is a definite procedure for
correcting a mistake and other procedures which we will know later where the court commits an error of
judgment and an error of jurisdiction.
In error of judgment, if the judgment is wrong, it is a valid judgment. Your remedy is to APPEAL
the wrong judgment to a higher court. But when a court commits an error of jurisdiction, where it
insists on handling a case when it has no authority, I can question its actuation not necessarily by
appeal, but by resorting to “extraordinary remedies,” which refer to the remedy of CERTIORARI or
PROHIBITION. (Araneta vs. Commonwealth Ins. Co., L-11584, April 28, 1958; Nocon vs. Geronimo, 101 Phil.
735)
The principle came out in the bar. This error should have been raised on ordinary appeal, not by certiorari
because certiorari is only confined to correcting errors of jurisdiction or grave abuse of discretion. The
governing rule is that the remedy of certiorari is not available when the remedy of appeal is available. And
when the remedy of appeal is lost, you cannot revive it by resorting to certiorari because certiorari is not a
substitute for the lost remedy of appeal.
So, the remedies given by the law are different. These are basic terms which you should remember.
Q: In whom is jurisdiction is vested?
A: Jurisdiction is vested with the court, not in the judge. A court may have several branches, and
each is not a court distinct and separate from the others. So, when a case is filed before a branch, the trial may
be had or proceedings may continue before another branch or judge. (Tagumpay vs. Moscoso, L-14723, May 29,
1959)
EXAMPLE: The RTC of Davao is composed of several branches – eleven to twelve judges. But technically,
there is only one court – the RTC of Davao. We do not consider branches as separate courts.
Q: Now, if the case is filed and is assigned to Branch 8, can that case later be transferred and continued in
Branch 9?
A: Ah YES, because you never leave the same court. You are still in the same court. This is
because jurisdiction is not with the judge. It is with the court itself.
TYPES OF JURISDICTION:
Types of jurisdiction:
1.) General Jurisdiction and Special or Limited Jurisdiction;
2.) Original Jurisdiction and Appellate Jurisdiction; and
3.) Exclusive Jurisdiction and Concurrent or Coordinate Jurisdiction;
1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION
a.) GENERAL JURISDICTION is the authority of the court to hear and determine all actions and suits,
whether civil, criminal, administrative, real, personal or mixed. It is very broad – to hear and try
practically all types of cases. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
b.) SPECIAL or LIMITED JURISDICTION is the authority of the court to hear and determine particular
cases only. Its power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
So, the court is authorized to hear and try certain specified cases. Limitado pa ang power
niya. And when you go over the Judiciary Act, studying the jurisdiction of the different courts,
in civil cases you will see that the jurisdiction of some courts like the RTC, masyadong far
ranging. It covers many things whereas the jurisdiction of the MTC, makipot. Very narrow bah
because it is a court of limited or special jurisdiction.
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2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
a.) ORIGINAL JURISDICTION is the power of the court to take cognizance of a case at its inception or
commencement. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) One can file the case there for
the first time.
b.) APPELLATE JURISDICTION is the power vested in a superior court to review and revise the judicial
action of a lower court. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) If one court has the power
to correct the decision of a lower court, the power of this court is appellate. This is because it
commenced somewhere else and it is just reviewing the decision of the said lower court.
EXAMPLE: Maya Quitain will file a civil case in the RTC and that court will take cognizance
and try it. You are invoking the original jurisdiction of the RTC. After trial, Maya lost the case,
so Maya decided to appeal the decision of the RTC to the CA. The case is now there. It is now
in the CA and you are now invoking its appellate jurisdiction.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION
a.) EXCLUSIVE JURISDICTION is that possessed by a court to the exclusion of all others.
Q: Sugar JJ filed a collection case against John Vera, for an unpaid loan of P5,000. The
judiciary law says, if you file a civil case to collect an unpaid loan below P200,000 300k and
400k in MM, you should file it with the MTC. Can Sugar JJ file it in the RTC?
A: NO. Therefore the jurisdiction of the MTC is EXCLUSIVE. It does not share its power with
other courts.
b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together with
another or other courts over the same subject matter, the court obtaining jurisdiction first
retaining it to the exclusion of the others, but the choice of court is lodged in those persons
duly authorized to file the action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb. 12, 1962)
Example: Thaddeus Tangkad wants to file a case or petition in court. Then, he looks at the
law and the law says that you can file it in this court or, kung ayaw mo diyan, puwede din
dito, diyan or doon – Thaddeus Tangkad can file it in this court or in other courts. Therefore,
he has the right to choose where to file. So if Thaddeus files it in court #2, and it assumes
now jurisdiction, out na ang court #1 and court #3. If he files it in court #3, out na yong #1
and #2. Now this is what you call CONCURRENT jurisdiction because you can file the case in
two courts or more at your choice.
Now, last time we were classifying courts and you learned that the SC is meron palang
original jurisdiction. Ito palang CA also has original jurisdiction. Ang RTC obviously is more of
an original court than an appellate court.
Q: Are there certain types of cases or petitions where I can file it directly with the SC or
file with the CA or file it with the RTC?
A: YES and the best example is a petition for HABEAS CORPUS. The SC, CA and
RTC share concurrent jurisdiction to entertain petitions for habeas corpus. Makapili
ka. I-file mo SC, puwede. Kung gusto mo sa CA, puwede din. Kung i–file mo sa RTC, puwede. In
effect, these are the instances when the SC, CA and RTC exercise concurrent jurisdiction.
ELEMENTS OF JURISDICTION IN CIVIL CASES
In your study of criminal procedure where you also studied the law on jurisdiction, there are also some
elements of jurisdiction in criminal cases. Otherwise, the proceeding will be illegal. Jurisdiction over the subject
matter; Jurisdiction over the person of the accused; and the third is territorial jurisdiction, i.e. the case should
be filed in the place where the crime was committed. In civil cases meron din iyong counterpart.
Q: What are the elements of jurisdiction in civil cases?
A: The following: SPRI
a.) Jurisdiction over the subject matter ;
b.) Jurisdiction over the person of the parties to the case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Q: Now, what happens if in a particular case one of these is missing?
A: The proceedings become questionable. The proceedings become void. The judgment is not binding. That
is the effect of lack of jurisdiction. The proceedings are tainted with illegality and irregularity. Alright, let’s go
over them one by one.
A. JURISDICTION OVER THE SUBJECT MATTER
Q: Define jurisdiction over the subject matter.
A: Jurisdiction over the subject matter is the power of the court to hear and determine cases of
the general class to which the proceedings in question belongs. (Banco Español-Filipino vs. Palanca, 37
Phil. 291)
In other words, it is the jurisdiction over the nature of the action. Now, you know already the
various types of civil cases such as actions for nullity of marriage, action publiciana, action
reivindicatoria, etc. This is what we call the NATURE OF THE ACTION.
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Now, if the nature of the subject matter of the action, e.g. annulment of marriage, where will you file it? It
should not be filed in the wrong court or else it will be dismissed. The counterpart of that in Criminal law is e.g.
offenses punishable by death penalty cannot be tried with the MTC. Annulment cases should be filed in the
RTC otherwise it will be dismissed for lack of jurisdiction over the subject matter.
Q: How is jurisdiction over the subject matter acquired or conferred?
A: Jurisdiction over the subject matter is conferred by law and is never acquired by consent or
submission of the parties or by their laches. This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It cannot
be acquired by an agreement between the parties, waiver, failure to object (silence).
Q: Now, suppose I want to file a case against you and under the law that should be filed in the RTC. But both
of us believe that the judges of the MTC like Judge Cañete knows more, he is more competent than the other
judge there. “Maganda siguro dito na lang tayo sa MTC.” “O sige, we sign an agreement, magpirmahan tayo
that we will file the case by agreement in the MTC.” By agreement, doon sa MTC natin i-file. Did the MTC acquire
jurisdiction over the case because the parties agreed?
A: NO, agreements between parties cannot change the law. Jurisdiction is conferred by law, not
by agreements of the parties. Jurisdiction over the subject matter cannot be agreed upon. It is
acquired by or conferred to the court by law – either the Constitution or the Judiciary Law. The
parties cannot agree to have the case submitted to another court.
Q: Now, suppose I will file a case against you in a wrong court. Ikaw naman hindi ka kumibo. Actually what
you should do there is file a motion to dismiss (or in criminal cases a motion to quash.) But hindi ka nagkibo
“Sige lang. I will not complain.” So is it okey? Since you did not object, you did not file a motion to dismiss, you
did not file a motion to quash, did the ‘wrong’ court acquired jurisdiction over the case?
A: NO. Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver
or silence or failure to object cannot vest jurisdiction in the wrong court because jurisdiction over
the subject matter is conferred by law. And when the court has no jurisdiction, the court by itself
has the power to dismiss, “Why will I burden myself for trying a case, when I have no jurisdiction?”
The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs.
SIBONGHANOY (April 15, 1968). The issue of jurisdiction was not questioned for an unreasonable
length of time. BUT the rule is, it can be raised at any stage of the proceeding even for the first
time on appeal. And even the parties may not raise it, the court motu propio has the authority to
dismiss it.
Q: How is jurisdiction over the subject matter determined?
A: It is determined by the allegations of the complaint. It does not depend upon the pleas or
defenses of the defendant in his answer or motion to dismiss. (Cardenas vs. Camus, L-19191, July 30,
1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23, 1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27,
1967)
B. JURISDICTION OVER THE PERSON
Q: Define jurisdiction over the person.
A: Jurisdiction over the person is the power to render a personal judgment through the service
of process or by voluntary appearance of a party during the progress of a cause. (Banco EspañolFilipino vs. Palanca, 37 Phil. 291)
Q: In criminal cases, how does the court acquire jurisdiction over the person of the accused?
A: By having him (1) arrested; (2) by service of the warrant of arrest; or (3) by his voluntary
surrender.
Q: Even if he is not arrested, can the court try an accused without the accused being arrested?
A: Of course not, because the court has not acquired jurisdiction over his person. Arestuhin mo muna. Then
puwede siyang mag-bail kung gusto niya. After na-arrest, naglayas, nagsibat? Bahala ka i-try in absentia. There
will be a valid decision because the court has already acquired jurisdiction. Of course we cannot enforce the
decision until we caught him. Pero pagnahuli, ka diretso ka na sa prisuhan. You say, “I was not able to give my
side. I was not able to confront and cross-examine the witness against me.” Eh, bakit ka naglayas? Pasensiya
ka! That’s the concept of trial in absentia. But for trial in absentia to proceed in criminal cases, you must first
arrest him. You cannot try him without being arrested. You must arrest him and arraign him first. The same thing
in civil cases. It must be that the court must acquire jurisdiction over this person.
Normally, when we say jurisdiction over the parties, we are referring to the PLAINTIFF – the one suing, and
the DEFENDAN'T – the one being sued. For the decision to be valid, the court must obtain jurisdiction over the
person of the plaintiff and the defendant. Otherwise, the decision will not bind the parties over whom the court
has not acquired jurisdiction.
That is why jurisdiction over the parties is the power of the court to render a personal judgment which will
bind the parties to the case. What is the use of rendering a decision if the parties are not bound? It must have
effect.
Q: How does the court acquire jurisdiction over the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his
complaint. Upon filing his complaint in court, he is automatically within the jurisdiction of the
court. (MRR Co. vs Atty. Gen. 20 Phil. 523)
Q: How does the court acquire jurisdiction over the defendant?
A: Jurisdiction over the person of the defendant is acquired:
1.) upon service on him of coercive process in the manner provided by law; or
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2.) by his voluntary submission to the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil.
523)
First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS
IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the person of the defendant is
through a service upon him of the appropriate court process which in civil law is called service of
summons. This is the counterpart of warrant of arrest in criminal procedure.
So if the defendant was never served with summons, any judgment rendered by the court will not bind him.
Even if he is the loser in the case, judgment cannot be enforced because the court did not acquire jurisdiction
over his person.
The same principle holds true in criminal cases. A court cannot try and convict an accused over whose
person the court never acquired jurisdiction. In criminal cases, the court acquires jurisdiction over the person
through the issuance of a warrant of arrest. The warrant cannot have its effect even if it was issued, if the same
had not been served, i.e. by effecting the arrest of the accused by virtue of a warrant.
Q: In criminal cases, how can the warrant of arrest be effected?
A: Once an information has been filed in court, the court issues a warrant. Then, the arresting officer will
arrest the accused. The court acquires jurisdiction by ENFORCEMENT OF SERVICE for effective arrest of the
accused pursuant to the warrant of arrest.
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
JURISDICTION OF THE COURT
Another way to acquire jurisdiction over the person of the accused even if the accused is not arrested is
through VOLUNTARY SURRENDER. Since there is no more need for the warrant, the court will recall the same. In
civil cases, it is the voluntary submission of the defendant to the jurisdiction of the court.
Q: Defendant was served with summons improperly or irregularly therefore, he could question the
jurisdiction of the court over his person. But instead, he did not question the jurisdiction of the court despite the
defective service of court process. Did the court acquire jurisdiction over the person of the defendant?
A: YES, because jurisdiction over the person can be acquired by:
a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
This is unlike the jurisdiction over subject matter wherein the case could be dismissed upon filing in the
wrong court. The SC said that when you remained silent despite the defects, your silence has cured the defect.
Meaning, the jurisdiction over your person was acquired by waiver, or consent, or lack of objection.
Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the defendant?
A: Lack of jurisdiction over the person of the defendant may be cured by waiver, consent,
silence or failure to object, whereas jurisdiction over the subject matter cannot be cured by failure
to object or by silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
C. JURISDICTION OVER THE RES
RES is the Latin word for “thing.”
Q: Define jurisdiction over the res.
A: Jurisdiction over the res is that acquired by the court over the property or the thing in
contest, and is obtained by seizure under legal process of the court whereby it is held to abide
such order as the court may make. (Banco Español-Filipino vs. Palanca, 37 Phil. 291)
Q: A and B quarreled over a piece of land. What is the res of the case?
A: The piece of land is the res of the case.
Q: However, res may not be tangible. For example, Weng Kolotski is an illegitimate child. She wants to be
acknowledged by her father. Thus, she filed a case against her father for compulsory recognition. What is the
res?
A: The res is the status of the child because it is the object of the litigation.
Q: Why is jurisdiction over the res important?
A: Sometimes it is a substitute for jurisdiction over the person. There are instances when the
court cannot acquire jurisdiction over the defendant like when he is abroad. But if the court
acquires jurisdiction over the res, the case may go on. Even if the court cannot acquire jurisdiction
over the person of the defendant, jurisdiction over the res becomes a substitute over the person.
EXAMPLE: Even if the defendant is a non-resident who is out of the country and the object of
litigation is here in the Philippines, then acquisition of jurisdiction over the res confers jurisdiction
to the court even if the defendant is abroad. The res here is where the judgement can be enforced.
That is why in Rule 14, there is an extra-territorial service of summons. But based on a SC ruling, the
extra-territorial service of summons is not for the purpose of acquiring jurisdiction over the person
of the defendant but is merely how to comply with the due process clause.
D. JURISDICTION OVER THE ISSUES
Q: Define jurisdiction over the issues.
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A: Jurisdiction over the issue is the authority to try and decide the issues raised by the
pleadings of the parties. (Reyes vs. Diaz, 73 Phil. 484)
Q: What are pleadings?
A: They are governed by Rule 6.
Rule 6, Section 1 - Pleadings are the written allegation of the parties of their
respective claims and defenses submitted to the court for trial and judgment.
In a civil case, the parties before the trial file in court pleadings. That is where you state your position.
EXAMPLE: Francis “Paloy” Ampig will sue you to collect a loan. So Paloy will file a complaint in court. That is
a pleading. Then you have to answer Paloy’s complaint in court. You say that you do not owe him anything
because you already paid him. So you prepare your answer in writing in court and that is also called a pleading.
Based on what Paloy said in his complaint and your answer, we will now know what they are quarreling about.
For example: Paloy says you borrowed money, you never paid him. Now according to your answer,
“No. I already paid him.”
Q: Now what is the issue?
A: The issue is, whether the obligation still existing or is it already extinguished by payment. So that is the
issue. So that is where we will know what we will try in this case.
Q: Suppose after the trial, the court said that the obligation has been extinguished by condonation. Now
where did the court get that? Your defense is payment, and the decision now it was extinguished by
condonation. Is the decision correct?
A: The decision is WRONG because the parties did not raise condonation as the issue. The case
was decided on an issue that was not even raised by the parties. So the court never acquired
jurisdiction over the issue. In other words, the court should only rule on what the parties raised in
their pleadings. That is what we call jurisdiction over the issue. The court should only rule on
what the parties claim.
So, the court is supposed to rule on the issue raised and not those not raised by the parties.
Take note that jurisdiction over the issues in civil cases is acquired after defendant has filed an
answer. In criminal cases, jurisdiction over the issues is acquired upon filing of a complaint. For a decision to be
effective, the court must acquire the jurisdiction over the subject matter, the person, the res in case the
defendant is not around, and the last is jurisdiction over the issue.
Q: Distinguish jurisdiction over the subject matter and jurisdiction over the issues.
A: The following are the distinctions:
1.) Jurisdiction over the subject matter is the power to hear and try a particular case, while
Jurisdiction over the issues is the power of the court to resolve legal questions involved in the
case;
2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the
issues involve in the case.
EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From the
moment I file the case, the court has acquired jurisdiction over the subject matter. Now, you are
summoned. File ka naman ng sagot mo, “Wala akong utang, bayad na.” Then the court has now
acquired jurisdiction over the issue. One is acquired upon filing of the complaint and the other one
is acquired after the filing of the answer by the defendant.
HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was: State the hierarchy of the Courts in the
Philippines.
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
REGIONAL TRIAL COURTS
MetTC
MTCC
MTC
MCTC
Note:
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Digos, Panabo
MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every municipalities.
b.) Special courts
There are also Special Courts which are also considered part of the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended)
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3.
4.
Sharia District Courts
Muslim Personal Law);
Family Courts
and the Sharia Circuit Courts (PD 1083 , also known as the Code of
We are concerned only of the jurisdiction of the REGULAR COURTS.
JURISDICTION OF THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129) which
reorganized the judiciary in 1983. Being a constitutional court, its jurisdiction is found in the fundamental law
itself. The SC is both an original and appellate court.
a.) ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction of the
SC:
Section 5. The Supreme Court shall have the following powers:
[1] Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, over petitions for certiorari, prohibition, mandamus, quo
warranto , and habeas corpus.
Now, it is still premature for us to discuss now what do you mean by certiorari, prohibition, mandamus, quo
warranto because that is discussed exhaustively in the study of Special Civil Actions. But you are more
acquainted with habeas corpus. It is a special proceeding. If you are illegally detained, you can file a petition for
habeas corpus directly before the SC because it has original jurisdiction.
So that is the first provision in the Constitution dealing with the jurisdiction of the SC. However, the SC is
not only an original court, it is also an appellate court.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2), Article VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
b) All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto.
c) All cases in which the jurisdiction of any lower court is in issue.
d) All criminal cases in which the penalty imposed is reclusion perpetua or
higher.
e) All cases in which an error or question of law is involved.
a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
So if the RTC in a certain civil case declares the law as unconstitutional since it has the power
to do so, the same has to be appealed directly to the SC. It cannot pass through the CA because
the SC has exclusive appellate jurisdiction regarding the matter.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
This is related to the legality of tax cases – whether a tax or tax penalty is legal or not.
However, whatever decision the lower court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no jurisdiction over a case. The aggrieved
party, it if wants to raise that joint, it must go to the SC. When the issue is purely jurisdiction, the SC shall
have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of any lower court is in issue, the
cases involve 100% pure jurisdiction as an issue. There are no factual issues involved. If the issue
of jurisdiction is mixed with a factual issue, the appeal should be in the CA without prejudice to the
filing of the same with the SC later. So, this is 100% issue of jurisdiction. No factual issue is
involved.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
We will not dwell on this. This is more on Criminal Procedure. We are only interested in civil cases.
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(e) All cases in which only an error or question of law is involved.
Take note that ONLY an error or question of law is involved. So, if there is a mixed question of
law and a question of fact, appeal must be filed with the CA. You only go to the SC if the appeal is
100% legal. That applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
The best example of questions of law where the issues are purely legal are classroom
problems. The question is: Who is right? A or B? Reasons. You apply the law. But as to what
happened, the facts are already given. Based on these facts who is correct? Yun ang tinatawag na
question of law.
Pero if the facts are still vague, that is not a question of law, that is a question of fact. Example:
Lyle filed a case against Aivy to collect an unpaid loan. According to Lyle, Aivy borrowed money from him and
it’s already overdue and she has not paid. Aivy admits she borrowed money from Lyle but says she has already
paid. Now, the question in the exam: Who is telling the truth?
My golly! How can you answer the question who is telling the truth? In other words, I have to hear them.
Yun ang tinatawag na question of fact – what happened, pinag-aawayan pa. When you go to SC in civil cases,
you are not there to ask the SC to determine who is telling the truth. You are asking who is right under the law.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE
JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof.”
The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain cases
within their jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government – COA. Or
disallowance on disbursement by government officers or removal from government service – CSC.
Now, according to Section 7, any decision, order or ruling of these commissions may be brought to the SC
on certiorari, etc. So you will see that the decisions of the constitutional commissions are reviewable by the SC.
However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the
CA by now making decisions of the CSC no longer appealable to the SC directly but appealable to
the CA. So based on the present law, out of the three constitutional commissions, the only ones
whose decisions are appealable directly to the SC are those of the COMELEC and the COA
When that law was passed where the decisions of the CSC are appealable to the CA, first I was stunned. I
said there is something queer here because the CSC is a constitutional body and the CA is not. So why will a
decision of a constitutional body be reviewable by a non-constitutional body? And I said parang it might violate
the Constitution. Under the Constitution, decisions of the constitutional commissions are appealable to the SC.
Does Congress have the power to change that by making it appealable to the CA?
So I had to look at the provision again to find out whether this is possible. But pwede naman pala. You look
at the provision, “Unless otherwise provided by this Constitution or by law..” Meaning, the decisions are
appealable to the SC unless otherwise provided by law. The Constitution itself gave Congress the power to
change it. So there is no problem.
Article VII, Section 4, last paragraph, 1987 Constitution:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate its
rules for the purpose.”
If there’s an electoral protest for the President and Vice-President, the matter is not to be decided by the
COMELEC but by the SC. This is what is called as the SC acting as the Presidential Electoral Tribunal. The only
case so far was that filed by Defensor-Santiago but which was dismissed, the SC ruled that when she ran for the
Senate, she has already technically abandoned her interest for the Presidency.
Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief Clause
“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or extension thereof, and must promulgate its decision
thereon within thirty days from its filing.”
So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual basis of the
proclamation of martial law. Meaning, the SC can inquire into the basis on why martial law is declared.
Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is the
prerogative of the President to determination, at his discretion, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.
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So this particular provision of the Constitution came about in 1987 to check the supposed excesses during
the time of Marcos, though it came too late. It may well take another 100 years to produce another Marcos.
Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5 hereof.
Congress may change or even remove the jurisdiction of the RTC or CA. The law can change
them because jurisdiction over the subject matter is conferred by law. However, Congress does not
have the power to lessen or deprive the Supreme Court of its jurisdiction under Section 5, Article
VIII.
However Article VI, Section 30 states:
“No law shall be passed increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and concurrence.”
Thus , Congress cannot lessen but it can increase the SC’s powers and jurisdiction, PROVIDED it
is with the latter's advice and concurrence.
The provision under the Ombudsman Law (RA) with regards to the Ombudsman’s disciplining power
appealable directly to the SC, was declared unconstitutional by the SC because it increased the SC’s jurisdiction
and was passed without the advise and concurrence of the SC.
So more or less, these are the scattered provisions of the Constitution dealing with the SC’s jurisdiction.
[Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE OF THE SUPREME
COURT'S JURISDICTION.]
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of certiorari,
prohibition and mandamus as defined in Rule 65 against the following: the CA, the COMELEC, COA,
Sandiganbayan, Central Board of Assessment Appeals, NLRC or the Secretary of Labor under the Labor Code.
The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the issuance
of writs of certiorari, prohibition, mandamus against the following: the SEC, the CSC, the different boards,
tribunals or agencies which replaced the old Public Service Commission (e.g. LTFRB). Also, issuance of writ of
certiorari against the RTC and other quasi-judicial agencies, courts, instrumentalities and commissions.
CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and consuls.
This is based on the Judiciary Law and the Constitution.
CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of certiorari,
prohibition, and mandamus against inferior courts and bodies. For example, a petition for mandamus against
the MTC of Davao City can be filed with the SC, CA, or RTC although the policy of the Supreme Court is that it
should be filed with the RTC based on the hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758)
Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other
ancillary writs in aid of the Sandiganbayan's APPELLATE JURISDICTION. Amended by rule 65 Sandiganbayan
whether or not in its exercise of its appellate jurisdiction
b.) APPELLATE JURISDICTION OF THE SUPREME COURT:
1.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the accused
appeals or not, the case will be elevated to the SC;
2.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the penalty of
reclusion perpetua or life imprisonment is imposed or other offenses which arise out of the same
occurrence or committed by the accused on the same occasion;
3.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types:
3.1.) From the CA or all appeals from the CA are certiorari which is different from the certiorari in Rule
65.
3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies to
criminal cases. In civil cases, if you want to go directly to the SC, you can do so by appeal by
certiorari, provided that the following conditions are met:
a.) If no question of fact is involved and the case involves the constitutionality or
legality validity of any tax, impost, etc., or jurisdiction of the lower courts is in issue
( Article VIII, section 5 par.(2)
b.) only an error or question of law involved (supra);
c.) a judgment rendered upon an award under the Arbitration Law (RA 876)
d.) appeal on pure questions of law in cases of appeal to the RTC from inferior courts.
So, from the MTC to the RTC – ordinary appeal. From the RTC, on pure questions of
law, to the SC – appeal by certiorari.
3.3.) Appeal from other courts or administrative agencies liked appeal from the Sandiganbayan to the
SC, from the Central Board of Assessment Appeal or from the Ombudsman.
JURISDICTION OF THE COURT OF APPEALS
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BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the Judiciary Reorganization Act of 1980. BP 129
was passed in 1983 by the former Batasang Pambansa which practically abolished all the regular courts at that
time, and also with the special courts except the SC which cannot be abolished by Congress. What was also
spared was the Court of Tax Appeals which was likewise not affected.
In lieu of these, other courts were created. The constitutionality of BP 129 was challenged as violative of the
security of tenure of the judges. But its constitutionality was sustained in the case of DELA LLANA vs. ALBA, 112
SCRA 294.
The CA is composed of over 50 justices but I think new divisions were created. They decide cases by a
division of three.
Before BP 129, the court was also called the “Court of Appeals,” the counterpart of the present CA, though
the CA now is different and more powerful than the old one. BP 129 abolished the old CA and created another
court which was called the INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA Revolution, President Aquino, pursuant to
her law-making powers, issued E.O. #33 amending the Judiciary Law and changed the name of IAC to CA
(referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under E.O. #33 is actually the IAC under another
name only, pinalitan lang ng pangalan. But in a case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
210 SCRA 589 [1992]
HELD: E.O. # 33 created an entirely new court. Therefore, the IAC existed only for three years –
from 1983 to 1986. Hence, President Aquino not only re-baptized or re-christened the IAC but she
actually abolished the IAC and created a new CA.
“It is the holding of the Court that the present Court of Appeals is a new entity, different and
distinct from the Court of Appeals or the Intermediate Appellate Court existing prior to Executive
Order No. 33, for it was created in the wake of the massive reorganization launched by the
revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA)
revolution in 1986.”
So, in effect, Section 9 which defines the second highest court of the land has been amended twice. First, by
E.O. #33. And then on February 1995, it was amended again by RA 7902, known as “The Act expanding the
jurisdiction of the CA.”
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes whether or not in aid of its
appellate jurisdiction.
Does the language sound familiar to you? “Original jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus, quo warranto.” Did you hear that before?
Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the same
provision for the second time. So, if I would like to file a petition for habeas corpus, where will I file it?
Q: If I file it with the Supreme Court, is it allowed?
A: Yes, because the Constitution says so.
Q: But suppose I will instead file it with the CA, is it also allowed?
A: Yes, under Section 9, paragraph 1.
So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain
petitions to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
Alright, so I will go to a specific SITUATION: I’m a clever lawyer, and I will file a petition for quo warranto. In
order to be sure I will get what I want, I will prepare two identical petitions. Since concurrent man sila, I will file
before the SC and the other one with the CA. Sigurista ba – kung madisgrasya sa isa, meron pang isa.
Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-pareho – I
will invoke the jurisdiction of the two courts at the same time. Now, suppose I will do that, what do you think
will happen to me?
A: The consequence is found in Section 17 of the Interim Rules. That’s why, as I said, the Interim Rules are
still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari,
mandamus, prohibition, habeas corpus or quo warranto may be filed in the IAC if
another similar petition has been filed or is still pending in the SC. Nor may such
petition be filed in the SC if a similar petition has been filed or is still pending in the
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IAC, unless it is to review the action taken by the IAC on the petition filed with it. A
violation of this rule shall constitute contempt of court and shall be a cause for the
summary dismissal of both petitions, without prejudice to the taking of appropriate
action against the counsel or party concerned.
So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know what will
happen to you according to the provision? Once the CA learns that you filed an identical petition with the SC,
the CA will dismiss the petition before it. And once the SC also learns that you also filed before the CA, the SC
will also dismiss the one you filed before it. So you end up with nothing because both courts will dismiss.
And not only that, both courts will declare you in contempt of court and if you are a lawyer, disciplinary
actions may be taken against you. That is what you will get if you think you are clever. It turns out that you
placed yourself in a frying pan. In other words, this is what is called abhorrent, contemptible practice of FORUM
SHOPPING. Have you heard that term before – forum shopping? ‘Yun bang sabay-sabay kang mag-file ng
case. You will invoke the jurisdiction of two or more courts simultaneously. That is an act of contempt of court
(Rule 7, Section 5).
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
[2] Section 9, paragraph 2, BP 129
(2) “Exclusive” jurisdiction over actions for annulment of judgments of Regional
Trial Courts;
Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But there is
something that you will notice. In paragraph 2, it says there – “exclusive jurisdiction.” In paragraph 1, the word
“exclusive” is not present. As already explained earlier in paragraph 1, the jurisdiction of the CA is concurrent
with the SC. In paragraph 2, the original jurisdiction of the CA is exclusive with the CA. You can only file this
type of action before the CA such as an action for annulment of judgments of the RTC’s.
Q: Actions for annulment of judgments of RTC’s, an action to annul a judgment of the RTC. Now, is this
similar to an appeal? Is this the same as appealing the decision of the RTC to the CA?
A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2, it is not
appellate jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the first time. And
the nature of the action is to annul a judgment of the RTC.
Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such a case
of annulment of contract, there is also such a case as annulment of judgments of the RTC’s and you come to
wonder:
Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how do you
distinguish it from an appeal?
A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines on
annulment of judgment of the RTC’s are SC decisions. There is no specific rule, ba. But ‘yung guidelines are
based on jurisprudence.
Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And that is
Rule 47. That is an entirely new rule. So that is enacted precisely to implement Section 9 Paragraph 2. Of
course, we will discuss that rule very much later.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Now we’ll go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is what is
often involved. Most of the cases which land in the CA are appealed cases. Alright, so paragraph 3 defines the
appellate jurisdiction of the CA.
[3] Section 9, paragraph 3, BP 129
(3) Exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders or awards of the RTCs and quasi-judicial agencies,
instrumentalities, boards or commissions, including the Securities and Exchange
Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the
appellate jurisdiction of the SC in accordance with the Constitution, the Labor Code
of the Philippines under PD 442, as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4) of the fourth
paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3,
you will notice that the CA is a powerful court because it has exclusive appellate jurisdiction over all final
judgments, decisions, resolution, orders or awards of RTC’s. So as a general rule, if the RTC, anywhere in the
country renders a decision and you want to appeal, whether civil or criminal, chances are it will go the to CA. It
is a powerful court, eh – all RTC’s eh – exclusive pa.
And not only RTC’s. The law says “and quasi-judicial agencies, instrumentalities, boards or commissions…”
Not only decisions of the RTC but quasi-judicial, this is what you call administrative bodies.
Administrative
bodies are not actually part of the executive branch but they act just like courts of justice. They can decide
cases and there are hundreds of administrative agencies in the Philippines. And therefore, if you lost a case
before anyone of these bodies, or tribunals, you appeal the decision not with the SC, but to the CA.
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The amendments by RA 7902 is even more specific by adding this phrase, “including the SEC, SSS, the
Employees Compensation commission and the Civil Service Commission (CSC).” That is the addition.
Gi-klaro ba.
CSC – this is what I’ve notice before…I told you before. Before this law was passed, under the Constitution,
decisions of the CSC are appealed to the SC together with the COMELEC and the COA. But with the passage of
RA 7902, the appeal from the CSC has been transferred to the CA, so what is left behind in the Constitution is
the COMELEC and the COA na lang.
For a while there I thought that this was wrong because the CSC is a constitutional body and its decisions
shall be appealed to a non-constitutional body like the CA. So, how do we reconcile this with the Constitution,
Article IX-A, Section 7, where it states that the ruling of each commission shall be reviewed by the SC?
However, the same provision states that: “Unless otherwise provided by this Constitution or by law.” And the
law is the RA 7902. So, this is how we reconcile it, in other words, the Constitution and the law can provide for a
different mode.
Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer some of
the workload to the CA. That is the obvious purpose.
The phrase “except those falling within the appellate jurisdiction of the Supreme Court…”means all cases
should be appealed to the CA except those which belong to the SC under the Constitution. We know that
already.
When the issue is the constitutionality of the law, treaty, legality of any tax, the
jurisdiction of any lower court – yan, hindi puwede sa CA. Diretso yan sa SC.
And also “except those falling under the Labor Code of the Philippines.” A labor case is not supposed to be
filed in court but with a quasi-judicial agency known as the NLRC and you start in the local level – from the
Labor Arbiter, then the decisions of the Labor Arbiter are appealable to the NLRC and then from there, where
will you go?
Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency and
under the law, all decisions of quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception – except those under the appellate jurisdiction of the SC
under the Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC decisions cannot
be appealed to the CA and the only way to elevate it is to the SC by what we call certiorari, not appeal. Also,
decisions of the Secretary of Labor, under the Labor Code are not reviewable by the CA, but they are reviewable
directly by the SC. - amended
And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third paragraph and
subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.” So, in other words, the
new Judiciary Law still makes some reference to the old law. This shows that the entire 1948 Judiciary Law has
not been totally repealed. Some provisions are still intact because of the reference.
Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases. EXAMPLE: A
person is sentenced to reclusion perpetua, his co-accused is sentenced to reclusion temporal or prison mayor,
and all of them will appeal, all of them should be sa SC na. Otherwise, you will be splitting the appeal into two
parts.
Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure
legal question, SC yan.
Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law.
A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA.
The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax,
when the jurisdiction of the lower court is in issue, as explained here in this paragraph of the
Judiciary Act of 1948, if the appeal is 100% constitutional issue, jurisdictional or legality issue –
appeal is to the SC under the Constitution. But if it is mixed with questions of fact, do not go to
the SC. You go first to the CA. That is what the paragraph is all about. Alright, so that takes care of the
jurisdiction of the CA.
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the power to grant and conduct new trials
or further proceedings. Trials or hearings in the CA must be continuous and must be completed
within three (3) months unless extended by the Chief Justice. (As amended by RA 7902)
This paragraph shows that the present CA that we have now is a more powerful court than before. It is a
unique court. Aside from being an appellate court, it also acts as a trial court. It may receive evidence but only
those evidence which were overlooked by the trial court. It can order a new trial or conduct a new trial itself.
Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence? Does
it mean to say now that since the CA is a very powerful court, it can take the place of the RTC? Meaning, if I’m a
party instead of presenting my case before the RTC, I will not, “Doon na lang sa CA.”
A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT
125 SCRA 522 [1983]
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HELD: The power of the CA to receive evidence refers only to incidental facts which
were not 100 percent touched upon, or matters which were simply overlooked by the
trial court. You cannot opt not to present evidence before the RTC. It only refers to
incidental facts.
“Evidence necessary in regards to factual issues raised in cases falling within the Appellate
Court’s original and appellate jurisdiction contemplates ‘incidental’ facts which were not
touched upon, or fully heard by the trial or respondent Court. The law could not have
intended that the Appellate Court would hold an original and full trial of a main factual issue in a
case, which properly pertains to Trial Courts.”
JURISDICTION OF THE
REGIONAL TRIAL COURTS
Ito ang third level, ‘no? And by going over their jurisdiction, you will see that it is a court of general
jurisdiction and it is actually the workforce of the whole judiciary. ‘Yan…talagang mabigat ang trabaho nitong
RTC. Their workload is terrible. Before, somebody asked me, “Dean, gusto mong mag-judge sa RTC?” Inyuha na
na! (Burawi nyo!) Inyo na nang trabaho na ‘yan because there are 2 things there when you get the job of the
RTC judge: Of course, you want to excel, you want to do your job properly and efficiently, you will die early
because of the workload. Or, you end up as one who is lazy. You end up with administrative cases for laziness,
left and right. So mabuti pa, huwag ka na lang magtrabaho diyan, kasi mabigat ang trabaho diyan.
Q: How many RTC’s are there in the Philippines, from Northern Luzon to Southern Mindanao?
opinion?
A: You look at the opening clause of Section 13:
In your
Section 13 (1) Creation of Regional Trial Courts – There are hereby created thirteen (13)
Regional Trial Courts, one for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION.
From the 1st to the 12th, the 13th is actually in the National Capital Region (NCR), Metro Manila.
Every division is divided into branches and the number of branches keep on increasing by law.
So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th judicial
region, pero bakit ‘yun ganoon? Davao City lang, more than 10 na? Well, here is where you will go back to your
fundamentals. A court is not the same as a judge. ‘Yan…
Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So, kung
branches siguro, malapit nang maging 1000 throughout the country. So there are 13 courts with almost 1000
judges. Now, as a matter of fact, if you want to know exactly how many there are, you refer to your Section 14.
Actually, this has been amended many times because from 1980 up to the present, Congress passed laws. In
fact when the law took effect, according to Section 14, there are originally 29 RTC judges commissioned for the
11th judicial region – 29 originally.
Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there are
supposed to be 41 RTC judges for the 11th judicial region. As I said, unless from 1991 to the present
dinagdagan na naman nila.
So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches which sits
thereafter for the province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo. Four branches
which sit thereat for the province of Davao Oriental which sits at Mati, Bagangga and Butuan. Sixteen branches
which sit thereat for the province of Davao del Sur. And the City of Davao which sits at Davao City, Digos,
Malita and Bansalan. Then 10 branches whish sit thereat for the province of South Cotabato and the City of
General Santos which sit at General Santos City, Koronadal [the City of Eumir, Francis and Mortz], Surallah, and
Polomolok. And 5 branches which sit thereat for the province of Surigao del Sur which sit at Tandag, Ginanga,
Bislig and Kantilan. So that is how they are distributed within the 11th the juridical region.
Q: So, since there are 41 of them scattered throughout the 11th judicial region, from Surigao to South
Cotabato, for example, I would like to file a case against my neighbor based in Davao. So i-file ko sa Polomolok,
anyway that’s the same court, eh. Or a criminal in Davao City file-an sa Mati. Anyway, the same court na. Are
you allowed to do that?
A. The answer is NO! Every branch of the RTC has its own area of responsibility. Except in Davao City, or in
chartered cities, the authority of every branch here is throughout Davao City. But sa probinsya, hati-hati ‘yan
eh, and the provision there is Section 18 of BP 129.
BP 129, Section 18 . Authority to define territory appurtenant to each branch – The Supreme
Court shall define the territory over which a branch of the Regional Trial Court shall exercise its
authority. The territory thus defined shall be deemed to be the territorial area of the branch
concerned for purposes of determining the venue of all suits, proceedings or actions, whether
civil or criminal, as well as determining the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts over which the said branch may exercise appellate jurisdiction.
The power herein granted shall be exercised with a view to making the courts readily accessible
to the people of the different parts of the region and making the attendants of litigants and
witness as inexpensive as possible.
‘Yan, so in the province every branch has its own defined area. So, for example if you are from Nabunturan,
you cannot file a case in Panabo. Kalayo-layo niyan. There is a branch there in Nabunturan. Doon ka mag-file.
Kanya-kanya ng responsibility.
Now, the law says, the SC has the power to define the area of its branch for purposes of supervising that
area and the MTC there. Now, as early as 1983, the SC has already come out with administrative order
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throughout the Philippines defining the area of responsibility of each branch. Sometimes I need that, eh,
because there are cases to be filed outside Davao City, especially Cotabato Province. And you have to be
updated kung sang branch ba ako pupunta nito. Sometimes you have a hard time, eh. For example, the case
originated in Babak, part of Davao del Norte, saan ba ito i-file? Panabo or Tagum? I need to consult that
circular. ‘Yan…that will be very helpful. Now you please correlate Section 18 of the Judiciary Law with the
Interim Rules Section 2 because Section 2 of the Interim Rules is related to this, eh.
Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. a) MetTCs, MTCs and MCTCs shall exercise their jurisdiction in the city,
municipality or circuit for which the judge thereof is appointed or designated.
b) A Regional Trial Court shall exercise its jurisdiction within the area defined by
the SC as the territory over which the particular branch concerned shall exercise its
authority, in accordance with Sec. 18 of BP 129.
Yaan! So every RTC shall have authority. Alright, these are what you call administrative provisions.
Now, let’s go to the jurisdiction of the RTC:
EXCLUSIVE ORIGINAL JURISDICTION– Section 19 as amended by RA 7691
CONCURRENT ORIGINAL JURISDICTION with other courts – Section 21
APPELLATE JURISDICTION – Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC
Sec. 19 Jurisdiction in civil cases – Regional Trial Courts shall exercise exclusive original
jurisdiction:
[1] In all civil actions in which the subject of the litigation is incapable of
pecuniary estimation.
What does it mean?
Alright.
When the subject of the litigation is not expressed in terms of pesos, centavos.
In most cases that we know, the demand of the plaintiff is expressed in terms of amount, eh. EXAMPLE: A
creditor will file a case for the collection of the unpaid loan from the defendant. Ang nakalagay sa demanda
niya, that after trial that the court should order the defendant to pay him the sum of P500,000 na utang with
interest. So, the subject is expressed in terms of amount of damages ba, the court shall award to the defendant
damages amounting to half a million. Karamihan ng kaso ganyan.
But here, in this civil case, the subject of the civil case is not capable of pecuniary estimation. It
cannot be estimated or calculated in pesos.
EXAMPLE is an action for annulment; rescission of contract; an action for specific performance;
an action for declaratory relief by express provision of the law now; an action for the permanent
injunction against somebody;
[2] In all civil actions which involve the title to, or possession of, real property or
any interest therein, where the assessed value of the property involved exceeds
P20,000 or for civil actions in Metro Manila, where such value exceeds P50,000
except actions for forcible entry into and unlawful detainer of lands and buildings;
original jurisdiction over which is conferred upon the Metropolitan Trial Courts,
Municipal Circuit Trial Courts;
So real actions outside of forcible entry and unlawful detainer. The best example would be
accion publiciana, accion reinvidicatoria, quieting of title, provided the value of the property
exceeds P20,000.00 based on the assessed value of the property.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now has jurisdiction over accion
publiciana when the value of the property is P20,000 or less. But kung forcible entry and unlawful
detainer, klaro yan – walang RTC.
Now, if in Metro Manila, then value is P50,000. But outside Metro Manila, the assessed value is
only P20,000.
[3] In all civil actions in admiralty and maritime jurisdiction where the demand or
claim exceeds One Hundred Thousand pesos (P100,00.00) [now PhP 200,000.00] or,
in Metro Manila, where such demand or claim exceeds Two Hundred Thousand pesos
(P200,000.00)[now, PhP 400,000]. (exceeds 300k - 400k)
EXAMPLE: The shipper will ship to you in Davao goods involving common carrier. While in transit, the
goods are lost or they are totally damaged. You would like to file a claim or a case against the carrier, what kind
of a case? That is an admiralty or maritime case.
Q: If you are going to file a case against the shipping company, where will you file it? RTC or MTC?
A: It depends on how much is your claim. If your claim of the damaged or lost cargo exceeds P200,000, sa
RTC; if it is P200,000 or less, sa MTC. In Metro Manila, the jurisdiction is higher – it should be over P400,000.
Now do not confuse this with No. 2 because that involves LAND with more than P20,000 value.
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Take note that prior to August 16, 1999, the claim should exceed P100,000 or P200,000 in Metro Manila as
the case may be. Now, the claim is adjusted to P200,000 and P400,000, respectively pursuant to Section 5 of
RA 7691 which took effect last August 15, 1995:
RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional
amounts mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as
amended by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5)
years thereafter, such jurisdictional amounts shall be adjusted further to Three hundred
thousand pesos (P300,000.00): Provided, however, That in the case of Metro Manila,
the abovementioned jurisdictional amounts shall be adjusted after five (5) years
from the effectivity of this Act to Four hundred thousand pesos (P400,000,00).
So after August 16, 1999 (5 years from the effectivity of RA 7691) yung P100,000.00 naging P200,000 na.
Yung P200,000 in Metro Manila, naging P400,000. Then after another 5 years (2004), aakyat na naman ang
jurisdiction ng MTC. So from the original P100,000.00 magiging P300,000 na yan. Automatic ha.
[4] In all matters of probate, both estate and intestate, where the gross value of
the estate exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in probate
matters in Metro Manila, where such gross value exceeds Two Hundred Thousand pesos
(P200,000.00) [now P400,000]. (exceeds 300k - 400k)
In the subject of Wills and Succession, when a person dies, his estate, his property will be settled for the
benefit of his creditors and heirs. That is what you call either as testate or intestate proceedings depending on
whether the deceased left a will or none.
Q: Where should the estate of the deceased person be settled, RTC or MTC?
A: It depends on how much is the gross value of his estate. If it exceeds P200,000, RTC. If it is P200,000 or
less, it should be with the MTC. In Metro Manila again, it is doubled, the gross should be more than P400,000.
And again, this will automatically increase after 5 years from 1999.
[5] In all actions involving the contract of marriage and marital relations.
Most of these cases are under the Family Code.
Q: What are the possible actions which you can imagine involve the contract of marriage and marital
relations?
A: Annulment of marriage, legal separation, declaration of nullity, dissolution of the absolute
community of husband and wife, and action for support. These cases are the ones arising under
the Family Code, where it arises out of a marital relationship.
Take note that these cases are NO LONGER covered by the RTC because under RA 8369 (Family
Courts Act of 1997), these cases should now be tried by the FAMILY COURTS.
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:
xxxxxx
d) 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 of
gains;
xxxxxx
Now, in areas where there are no family courts, the cases shall be adjudicated by the RTC. So
certain branches of the RTC will act as family courts (acting family courts.
We shall skip first no. 6. We will return to that later. Let’s go to no. 7.
[7] In all civil actions and special proceedings falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as
now provided by law;
Before BP 129, these were special courts existing before 1980. Among these courts were the so called
Juvenile and Domestic Relations Courts (JDRC). Then you have the Court of Agrarian Relations (CAR) which tried
the cases involving tenancy, agricultural lessor, agricultural lessee, agricultural lands. When BP 129 was
enacted, the CAR and the JDRCs were abolished. Cases which they used to handle were automatically
transferred to the RTC. That was after BP 129 took effect.
What were the cases which were usually falling within the original jurisdiction of the former JDRC? Usually,
those involving family and children, like support filed by the child against his father, compulsory recognition,
custody of children, adoption proceedings – these are the cases which are usually heard by the JDRC.
Under BP 129, all of these are now within the jurisdiction of RTC. HOWEVER, this has been amended again
by RA 8369 (Family Courts Act of 1997) These cases are now under the jurisdiction of the FAMILY
COURTS: (See Sections 5 [b], [c], [e], [g])
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:
xxxx
b) Petitions for guardianship, custody of children, habeas corpus in relation to
the latter;
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c) Petitions for adoption of children and the revocation thereof;
xxxx
g) 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 Presidential Decree No. 603, Executive Order No. 56, (Series of
1986), and other related laws;
xxxxx
But the law transferring the jurisdiction of the CAR to the RTC became partially obsolete with the enactment
of the Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, 1988). Under the CARL, all agrarian
disputes between landlord and tenant, lessor and lessee were transferred to the DAR particularly
the DAR Adjudication Board (DARAB), making them quasi-judicial cases . So, from CAR to RTC, from
RTC to DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases:
1.) Cases where the issue is PAYMENT OF JUST COMPENSATION, for, the property which has
been taken under CARP law;
EXAMPLE: If you are a landowner and your agricultural land is placed under the CARP coverage,
the government will fix the payment for you. The trouble is that you did not lot agree on the amount
of payment. Agrabiyado ka sa compensation ng gobyerno. Now, you go to RTC and you ask for
higher compensation.
2.) Prosecution of criminal offenses for violation of the CARL;
So these are the only agrarian cases which still belongs to the RTC. This was explained by the SC in the
case of
QUISMUNDO vs. COURT OF APPEALS
201 SCRA 609 [1991]
HELD: “Wth the enactment of Executive Order No. 229, which took effect on August 29,
1987, the Regional Trial Courts were divested of their general jurisdiction to try agrarian reform
matters. The said jurisdiction is now vested in the Department of Agrarian Reform. Said
provisions thus delimit the jurisdiction of the regional trial courts in agrarian cases only to two
instances:
1.) petitions for the determination of just compensation to landowners; and
2.) prosecution of criminal offenses under said Act.
[8] In all cases in which the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs or the value of the property in
controversy exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in such
other cases in Metro Manila, where the demand, exclusive of the above-mentioned items
exceeds Two Hundred Thousand pesos (P200,000.00)[now P400,000] (exceeds 300k - 400k)
The best example is money claim. Most cases which go to court now are money claims – an action to collect
sum of money.
Q: Unpaid loan – you would like to collect an unpaid loan of your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over P200,000 outside Metro Manila – RTC, in Metro
Manila, double the amount – P400,000. If the amount that you are collecting is only P200,000 or less obviously,
you file your case in the MTC.
If the value of the claim is > P200,000 – RTC
If the value of the claim is = or < P200,000 – MTC
So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from P20,000 to
P100,000. And under the present law, it is now P200,000. But again, this is subject to the automatic increase in
jurisdiction by 2004.
Q: Suppose the principal amount that you borrowed from me is P300,000, the interest is P30,000. And you
are collecting P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total claim is
P350,000. Where will I file the case?
A: MTC pa rin. In determining the jurisdictional limit of P300,000, do not include the interest,
damages, attorney’s fees, etc. So you deduct those from the principal claim even if you put them in
your complaint because the law says, “xxx exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs xxx.”
Q: What are litigation expenses and costs?
A: Costs are not the same as attorney’s fees and litigation expenses. Actually, attorney’s fees and litigation
expenses are part of damages. Costs are governed by Rule 141, while attorney’s fees and litigation expenses
are governed by the Civil Code. Because there is some confusion there, akala ang costs and litigation expense,
pareho. No, they are not the same.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like breach of contract of carriage. Instead of bringing
you to your destination, you ended up in the hospital. You now sue the common carrier for damages and your
claim is P1 million for injuries, moral, exemplary, etc. Now, because the law says the jurisdiction of the RTC is
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above P300,000 but do not include damages. The claim in this case is P1 million, all for damages. Now, where
will you file the case?
Somebody said it should be in the MTC because in determining the jurisdiction of the RTC, you do not
include damages. If that is the interpretation, I said, all damage suits cannot be tried by the RTC because
remember, you pay filing fee for these cases but the jurisdiction is limited to the MTC. That is absurd! I do not
believe that kung puro damages wala ng jurisdiction ang RTC. Otherwise, all damage suits should be filed in the
MTC.
This question has been clarified by SC Circular No. 09-94: “Guidelines in the Implementation of RA 7691
Extending the Jurisdiction of the MTCs” where the SC said that the provision excluding damages applies
only if the damages are INCIDENTAL to the action. If the main cause of action is 100% damages,
you include it in determining the P300,000 jurisdictional limit of the MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but she survived. She claims for damages for
breach of contract of carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded P200,000. Since the case is purely for
damages, it is included in determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary claim. But if damages is the
primary or only claim, you determine whether the total claim for damages is above P300,000, or
equal to or less than P200,000. Yaaann!
The SC said in this Circular, “the exclusive damages of whatever kind” in determining the
jurisdiction under Section 19 paragraph [8] applies to cases where the damages are merely
incidental to or a consequence of the main cause of action. However, if the claim for damages is
the main cause of action, the amount of such claim should be considered in determining the
jurisdiction.
EXAMPLE: Inay will file a case against Janis to recover a piece of land worth P20,000.00 only. But her claim
for damages exceeds P300,000. So, you will notice ang claim for damages is incidental lang. Ang main action is
to recover a piece of land.
Q: In what court will Inay file a civil case where she wants to recover a piece of land with value of only
P20,000?
A: MTC because of paragraph [2]. But ang damages naman is P300,000? MTC pa rin iyan
because such damages, being incidental, is not included in determining the jurisdiction of the RTC.
However, if my actions against you is purely damages, like I will file a case against you for
damages arising from vehicular collision and I will claim P350,000 for damages, it should be in the
RTC. That is the explanation. The term “excluding damages” applies only if the damages are purely
incidental to the case. But if the action is purely damages, then you observe the P300,000
jurisdictional limit.
Now, the law says, “exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses,
and costs or THE VALUE OF THE PROPERTY IN CONTROVERSY exceeds P300,000….”
Q: What is the property in controversy?
A: Obviously here, the property is PERSONAL PROPERTY not real. If the property sought to be recovered is
real, apply paragraph [2] of Section 19 on recovery of real property.
Q: In the subject of Sales, the unpaid seller would like to rescind the sale and get back the unit. Where will
the unpaid seller file the case?
A: If above P300,000 sa RTC ka. It if is only P300,000 or less, sa MTC. So this is an example of “the value of
the [personal] property in controversy.”
Q: (By a classmate, Review class) Who shall determine the value or how should the value be determined?
A: You will learn the answer when we reach Rule 16 on Motion to Dismiss. In determining the jurisdiction of
the court, in the meantime, which will prevail? You will learn later that the allegations of the complaint will
prevail.
Like for example, I will file a case against you for an unpaid loan of P250,000. Then you say in your motion
to dismiss, “No! ang utang ko sa iyo is not P150,000, but only P80,000. Therefore, the RTC has no jurisdiction.”
So there is now a conflict with what I’m saying and with what you are saying.
With that, we will discuss the conflict later. Now, we do not know who is telling the truth. For the moment,
the rule is, you follow the plaintiff because jurisdiction is determined by the allegations of the
complaint. It is the complaint which will determined whether the court has jurisdiction over the
subject matter. It is not based on what the defendant is saying. That is the answer there.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA
120 SCRA 89 [1983]
FACTS: A entered into an agreement with B where A deposited the sum of P50,000 with B. After
certain conditions are complied B has to return the amount to A. According to A the conditions are
already complied with but B still refuses to return the money. So A filed a complaint which he
denominated as sum of money and since he is only asking for the return of P50,000, A filed the case
in the MTC.
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ISSUE #1: Whether or note the MTC has jurisdiction over the case.
HELD: The MTC has NO jurisdiction. It should be filed in the RTC. It is not an action to
collect a loan. You are not recovering a loan. You are compelling him to comply with the
agreement – to return the money after certain condition are complied with, di ba? You
are trying to enforce your agreement. therefore your action is an action for SPECIFIC
PERFORMANCE which should be tried by the RTC under paragraph [1].
“When a party to a contract has agreed to refund to the other party a sum of money
upon compliance by the latter of certain conditions and only upon compliance therewith
may what is legally due him under the written contract be demanded, the action is one
not capable of pecuniary estimation.” So it is cognizable by the RTC.
ISSUE #2: But according to the plaintiff, when he filed the complaint, it is entitled “for sum of
money” which should fall under paragraph [8]. Is the plaintiff correct?
HELD: NO. The plaintiff is wrong. The title of the action is not determinative of the
court. Just like the rule on contracts where the nature of the contract is not determined
by the title but by stipulation.
“The factual allegations in the complaint seeking for the performance of an
obligation of a written contract which is a matter clearly incapable of pecuniary
estimation prevail over the designation of the complaint as one for the sum of money
and damages.”
[6] In all cases not within the exclusive jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial functions
Practically, this makes the RTC the universal catcher – what does not belong to anyone of you, belongs to
me. That’s what this provision is saying.
EXAMPLE: An employee, Inday Locsin, files a case against the employer, Kenneth Lim, to claim nonpayment of wages, overtime pay, ECOLA and reinstatement for illegal termination. Under the Labor Code,
dapat sa NLRC. So it does not belong to RTC but if there is no vesting to NLRC, then it goes to the RTC.
A case which does not belong to any other court. Let’s try to connect it with something you know.
Q: If you want to file an action for annulment of judgment of RTC, where will you file your action?
A: CA only – an exclusive original jurisdiction of the action for annulment of the judgment of the RTC.
Q: Suppose Karen will file an action for annulment of judgment of the MTC. Does it belong to the CA?
A: NO! What the law says is: annulment of judgment of RTC, and not MTC. How about Supreme Court?
Lalong wala. Saan ka pupunta? There is really no provision in BP 129 which goes that way. I don’t think you
can go to NLRC.
Wala kang mapuntahan, saan ka tatakbo? Sa RTC because it does not belong to the jurisdiction of any
other court. It should fall under paragraph [6] That is why, this, there are problems reaching the SC on
jurisdiction – whether a case belongs to this, to the regular court or to a special quasi-judicial body. And we are
going to go over some of these cases.
SANDOVAL vs. CANEBA
190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the subdivision and the buyer. Later on,
the buyer refused to pay the unpaid installments. The subdivision developer filed a case for the
collection of unpaid installments over the subdivision lots. Now, if you look at the law, parang
money claims sa RTC or MTC.
HELD: The regular courts have no jurisdiction. That should be decided by the Housing
and Land Use Regulatory Board (HLURB) formerly known as NHA. Under PD 957, it is the
HLURB not the RTC or MTC which has the jurisdiction to hear a case involving nonpayment of installments over subdivision lots.
The counterpart of this case was the case of
CT TORRES ENTERPRISES, INC. vs. HIBIONADA
191 SCRA 268 [1990]
FACTS: This is also the case between the buyers of a subdivision lot against the subdivision
developer. Only this time baliktad – it is the subdivision lot buyers who are suing the developer of
the subdivision. The subdivision lot owners filed against the subdivision developer for not
maintaining properly the roads of the subdivision. So they filed a case for specific performance with
damages to compel the developer to comply with the contract to maintain the roads.
HELD: The jurisdiction is with the HLURB and not with the regular courts. But according
to the plaintiff “But I’m also claiming for damages so that it should be filed before the regular
courts. How can the HLURB award damages? Only the regular courts can award the damages.” Can
the HLURB award damages? According to the SC:
“The argument that only courts of justice can adjudicate claims resoluble under the provisions
of the Civil Code is out of step with the fast-changing times. There are hundreds of administrative
bodies now performing this function by virtue of a valid authorization from the legislature. This
quasi-judicial function, as it is called, is exercised by them as an incident of the principal power
entrusted to them of regulating certain activities falling under their particular expertise.”
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So quasi-judicial bodies are now authorized to award damages.
As a matter of fact in Labor Relations, the question is asked whether the NLRC is authorized to grant
damages also to an employee, moral and exemplary, which normally is only awarded by courts. The Labor
Code says yes. In other words, even damages now can be awarded by administrative bodies such as NLRC.
FAJARDO vs. BAUTISTA
232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno and the owners and developers of a subdivision. Fajardo and
others, as buyers, signed separate contracts each designated a contract to sell under which for
consideration therein stated, the Jarenos bound themselves to sell to Fajardo et al the of subject
thereof, and after the latter shall have paid the purchase price and interest shall execute in favor of
Fajardo et al the corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos sold these lots to other buyers and the
title was transferred to the second buyer. So when Fajardo et al learned about it, they filed separate
complaints with the RTC for annulment of the sale to the other buyers.
Now, according to Fajardo, the jurisdiction of the case belongs to the RTC and not with the
HLURB because the title of the lots are transferred to the other buyers. It is no longer under the
name of Jareno. Secondly, their action is for the annulment of title to a third person. Thirdly, these
third persons are not the developers; fourthly, under the Judiciary Law, actions involving title to a
real property are to be tried by the RTC.
HELD: The RTC still has NO jurisdiction because the case involved unsound real estate
business practice on the part of the subdivision owners and developers. Under the law,
unsound real estate business practice is under the HLURB. The practice in the case is
not a sound real estate business – I am a developer, I enter into a contract with you and
then later on I sold the contract to a third person, that is unsound!
“By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to hear and decide
the matter. In addition to involving unsound real estate business practices, the
complaints also involve specific performance of the contractual and statutory
obligations of the owners or developers of the subdivision.” So it is still with the HLURB
and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE
204 SCRA 99 [1991]
FACTS: A mining company entered into a operations agreement for management with another
mining company. Then later on, one wants to file a case for rescission of the agreement for one
reason or another. So it was filed with the RTC.
HELD: The RTC has NO jurisdiction again because PD 1281 vested with the Bureau of
Mines with jurisdictional supervision and control over all issues on mining claims and
that the Bureau of Mines shall have the original exclusive jurisdiction to hear and decide
cases involving the cancellation and enforcement of mining contracts.
The trend is to make the adjudication of mining cases a purely administrative matter. Another case is the
case of
MACHETE vs. COURT OF APPEALS
250 SCRA 176 [1995]
FACTS: This case involves the collection by the landowner of unpaid back rentals from his
leasehold tenants. The landowner filed the money claims before the RTC.
HELD: The RTC has no jurisdiction over cases for collection of back rentals for the
leasehold tenants. This is an agrarian dispute which exclusively cognizable by the
DARAB.
“The failure of petitioners to pay back rentals pursuant to the leasehold contract
with landowner is an issue which is clearly beyond the legal competence of the trial
court to resolve. The doctrine of primary jurisdiction does not warrant a court to arrogate unto
itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence.”
Let’s go to Professional Regulation Commission (PRC). That is the government body which administers all
government examination for professionals except members of the law profession. Sa medicine, CPA, engineer,
lahat andiyan sa kanila, including plumber and marine officers. Basta lahat ng merong examination sa kanila
yan except sa bar which is under the jurisdiction of the SC. Now, this is what happened in the case of
LUPANGCO ET AL vs. COURT OF APPEALS
160 SCRA 848 [1988]
FACTS: Lupangco et al were BS Accounting graduates and reviewing to take the CPA exams in
1985.
There were some anomalies (leakages) in the 1985 CPA Board Examination. By next year, the
PRC passed a resolution prohibiting CPA examinees to attend review classes or conferences because
of leakages. They are prohibited from receiving any handouts, review materials or any tip from any
school, college or university. That was Resolution No. 105 of the PRC.
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So petitioners Lupangco et al, all CPA reviewers filed an injunction suit against the PRC and to
declare the resolution unconstitutional. They filed it with the RTC. The PRC moved to dismiss
alleging that the RTC has no jurisdiction over the case because the one which has the jurisdiction is
the CA – exclusive jurisdiction to review any decision, order, ruling or- resolution of any
quasi-judicial body. And the PRC is a quasi-judicial body. So their resolution can only be questioned
before the CA and not with the RTC.
HELD: The PRC is WRONG because PRC is not only a quasi-judicial body, it is also a
quasi-legislative body. It also acts as legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a resolution pursuant to it purely
administrative function. It is a measure to preserve the integrity of licensure examination.
Therefore, it does not belong to the CA. It is not the type of resolution contemplated by Section 9.
“The authority of the CA to review all resolutions of all quasi-judicial bodies pursuant to the law
does not cover rules and regulations of general applicability issued by the administrative body to
implement its purely administrative policies and functions like Resolution No. 105 which was
adopted by the PRC as a measure to preserve the integrity of licensure examinations.” So that is
not the resolution reviewable by the CA.
Now, under what provision under Section 19 can we justify the jurisdiction of the RTC in the
case. The SC said: It is under paragraph 1 where the case is incapable of pecuniary
estimation or, it may fall under paragraph 6 where the case is not within the exclusive
jurisdiction by any court, tribunal or- body exercising Judicial or quasi-judicial functions.
So, if it is not reviewable by the CA, in what court can you question the resolution? Definitely, not the CA,
definitely not the SC. I don’t think it’s with the NLRC. So it will fall under the jurisdiction of the RTC. Or, it
can also fall under paragraph [1,] where the subject matter of the suit is not capable of pecuniary
estimation because what is the nature of the demands is to declare unconstitutional this
resolution. So it belongs to the jurisdiction of the RTC.
BERNARDO vs. CALTEX PHIL. INC.
216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and
an Oil company regarding dealership agreement, the case shall be under the jurisdiction
of the Energy Regulatory Board (ERB). So any dispute regarding their relationship
agreement except disputes arising out of the relationship as debtor and creditor. So if
the dispute arose out of the relationship as bebtor and creditor, it should be filed with
the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex, ordered
gasoline from Caltex. So he ordered in the morning. At 6:00 at night on the same day, there was a
price increase. So when the gasoline was delivered the following day, Caltex charged Bernardo for
the increased price. Bernardo refused to pay and he he filed a case before the RTC. Caltex argued
that the case should be filed with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale of petroleum products was
here perfected between Caltex and its operator/dealer Bernardo; that in virtue of the
payment admittedly made by Bernardo, Caltex became a “debtor” to him in the sense
that it was obligated to make delivery to Bernardo of the petroleum products ordered by
him; and that the only issue is the manner by which Caltex shall perform its commitment
in Bernardo’s favor. It is rather one cognizable by the Regional Trial Court, as a dispute
indeed ‘arising out of their relationship as debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the prices at which the petroleum
products shall be deemed to have been purchased from Caltex by Bernardo in December 5, 1990.
This is obviously a civil law question, one determinable according to the provisions of the Civil Code
and hence, beyond the cognizance of the Energy Regulatory Board.”
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original
jurisdiction:
[1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus, and injunction which may be enforced in any part of their respective
regions;
Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original
jurisdiction of the RTC in Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have the original
jurisdiction but CONCURRENT with other courts.
Thus “original” jurisdiction stated in Section 21 is also shared with the SC and CA. Therefore , the SC, CA,
and RTC have original concurrent jurisdiction under Section 21. Like issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus, etc. This is concurrent with the CA and the SC. Such writs may be
issued by (a) the RTC under Section 19; (b) CA under Section 9; and (c) SC under Article VIII Section 5 of the
Constitution. The 3 courts share concurrent jurisdiction over these cases.
However the only difference is that writs issued by an RTC can only be enforced in the same
region where the RTC belongs. Unlike writs issued by the SC and CA, they can be enforced
anywhere in the Philippines.
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[2] In actions affecting ambassadors and other public ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions affecting ambassadors, other
public ministers and consuls. Section 21 paragraph 2 states only of the concurrent original
jurisdiction of the SC and RTC. Section 19 on the jurisdiction of CA does not include the action
stated in section 21 paragraph 2 as part of its (CA’s) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22.
Appellate jurisdiction. - Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs, MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall be decided on the basis of the entire record
of the proceedings had in the court of origin and such memoranda and/or briefs as
may be submitted by the parties or required by the RTCs. The decision of the RTCs in
such cases shall be appealable by petition for review to the CA which may give it due
course only when the petition show prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.
Now take note that the RTC also has appellate jurisdiction under Section 22. These are cases decided by the
MTC. So they act as a sort of ‘court of appeals.’ The RTC exercises appellate jurisdiction over all cases decided
by the MTC in their respective territorial jurisdiction.
Q: How will the RTC decide on the appeal?
A: It shall be decided on the basis of the entire record of the proceedings had in the court of
origin (MTC) such as memoranda and/or briefs as may be submitted. This means that witnesses
will not be made to appear again in the appeal. It is only a matter of reviewing the testimony,
stenographic notes, evidence presented, memoranda and briefs by the RTC judge.
Q: What are memoranda and briefs?
A: It is where the appealing party will argue that the decision is wrong and try to convince the judge that
the decision is wrong, and the other party to counter act that the decision is correct.
Q: Assuming that the case is originated in the MTC and subsequently dismissed by the RTC on appeal, is the
decision by the RTC rendered pursuant to its appellate jurisdiction appealable to the CA?
A: YES, but the mode of appeal is now different. The decision of the RTC in such cases shall be
appealable by petition to review to the CA. The CA may or may not give it due course.
Q: What is the difference between an appeal made from the RTC to CA and appeal from the MTC to RTC,
which is dismissed the same and subsequently appealed to the CA?
A: The former (RTC – CA) is in pursuance to the original jurisdiction of the RTC. The latter (MTC-RTC-CA) is in
pursuance to the appellate jurisdiction of the RTC. (They are governed by different rules)
To illustrate:
Pursuant to original jurisdiction of the RTC:
Pursuant to appellate jurisdiction of the RTC:
COURT OF APPEALS
COURT OF APPEALS
Ordinary appeal
(Rule 41)
Petition for Review
(Rule 42)
RTC
RTC
Ordinary Appeal
(Rule 40)
MTC
Unlike in a case under the original jurisdiction of the RTC, where an appeal to the CA is a matter
of course. Meaning, for as long as your appeal is on time and properly made, the CA will entertain
it.
It is different, however, in a case under the appellate jurisdiction of the RTC, even if your
appeal is on time and properly made, there is no assurance that the CA will entertain the appeal.
The CA may give it due course only when your petition for review shows prima facie evidence that
the lower court has committed as error of fact or law that will warrant a reversal or modification of
the decision or judgment sought to be reviewed.
Now, statistically for the past 20 years, the rate of petitions for review from the RTC which are given due
course is only 15%-17%. For every 100 petitions for review, 15 are given due course, 85 are thrown out. They
did not pass the test under Section 22. It is really a difficult process.
Summary of RTC jurisdiction:
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1.) As to the EXCLUSIVE original jurisdiction – Section 19 (BP 129);
2.) As to its original CONCURRENT jurisdiction – Section 21 (BP 129);
3.) As to its APPELLATE jurisdiction – Section 22 (BP 129)
JURISDICTION OF THE
MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC, automatically you know the jurisdiction of the MTC. In
criminal cases for example, sa RTC, imprisonment of more than 6 years until death penalty. So, necessarily 6
years or below, sa MTC. Same with civil cases.
Summary of jurisdiction of MTC:
A.) As to original jurisdiction – Section 33
B.) As to delegated jurisdiction – Section 34
C.) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in civil cases. - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts shall exercise:
1) Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount of the demand does not
exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed four hundred
thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must be
specifically alleged: Provided, That interest, damages of whatever kind, attorney's
fees, litigation expenses, and costs shall be included in the determination of the
filing fees: Provided further, That where there are several claims or causes of
actions between the same or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different
transactions.
Well if you know the jurisdiction of the RTC on money claims and probate cases, automatically you will also
know that of the MTC. Under the law, it is only the principal claim or the main claim which is computed.
Interest, damages of whatever kind, attorneys fees, litigation expenses and cost are not included
in determining the jurisdiction.
Even if the amount of damages and attorney’s fees do not determine jurisdiction, they must
still be specifically alleged in the complaint for the purpose of payment of docket fees. Thus, the
higher the amount one is claiming the higher the filing fee.
So with that , we will now go to decided cases involving docket fees.
JURISPRUDENCE ON THE FILING FEE IN CIVIL CASES:
Rule 111, the filing of criminal action, the civil aspect is deemed instituted. If it claims for moral and
exemplary damages, the filing fees should be paid immediately. If not stated, then it will be a lien
in the judgment. Compensatory damages are exempt from the filing of the fee.
Technically, a complaint in a civil case is not considered as filed unless you pay the complete
amount of the docket fee. Even if a complaint is filed, say, on December 1 and the payment is
made only on the December 4, the complaint is deemed officially filed on the December 4 when the
payment of the whole amount is effected.
This is so material for the purpose of prescription. Suppose today December 1 is the last day for the filing
of the complaint and the whole amount is not fully paid. ON December 2, the action is prescribed already. Thus,
the court acquires no jurisdiction over the case until the filing of the fee for the whole amount is made.
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA
149 SCRA 562
FACTS: The plaintiff files a complaint and paid the docket fee but he did not specify the amount
of the damages he was claiming. He contended that he is claiming for moral damages in such
amount as the court will grant. Respondent contended, on the other hand, that it cannot be done,
there is a necessity to state the exact amount of the damages in order to determine the correct
amount of the docket fee. So the plaintiff amended the complaint and paid the balance of the
docket fees.
ISSUE: Whether or not the subsequent amendment cures the defect?
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HELD: No, the defect is incurable. Thus, the action has to be dismissed. The court acquires no
jurisdiction over the case. The remedy is to re-file the complaint and pay again the complete
amount of the docket fee. The prior payment made is forfeited in as much as the defect in the first
complaint is incurable.
So based on the MANCHESTER ruling, you cannot cure the defect by merely amending the complaints. The
moment the case is filed, the court acquires jurisdiction. You cannot by yourself confer jurisdiction. Very harsh
noh? However, the SC, after reflecting on what it said in the case of MANCHESTER, realized the harshness of
their decision. This Manchester ruling was relaxed in the subsequent case of SUN INSURANCE OFFICE which now
the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS
170 SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but
the payment of the prescribed docket fee, that vests a trial court with jurisdiction over
the subject matter or nature of the action. Where the filing of the initiatory pleading is
not accompanied by payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims, third party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee prescribed
therefore is paid. The court may also allow payment of said fee within a reasonable time
but also in no case beyond its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently, the
judgment awards a claim not specified in the pleading, or if specified the same has been
left for determination by the court, the additional filing fee therefor shall constitute a
lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the additional fee.
For example, I make a partial payment of the docket fee because of inadequacy of money. Under the SUN
INSURANCE ruling, kung kulang ang bayad, huwag namang i-dismiss ang kaso! Give the party a reasonable
time to pay the balance. “When the filing of the initiatory (complaint) pleading is not accompanied by
the payment of the docket fees, the court may allow the payment of the fee within a reasonable
time but in no case beyond the prescriptive period.” Meaning, if by the time you paid the balance, nag
prescribe na ang cause of action, ah wala na! So, provided that the action has not prescribed.
The same rule applies to permissive counterclaims. So this answers the question:
Q: Is the defendant obliged to pay the docket fee?
A: It DEPENDS: if the counterclaim is permissive, dapat magbayad ka. If the counterclaim is
compulsory, libre yan!
And the third rule laid down in Sun Insurance: if the judgment awards a claim not specified in
the pleadings, the filing fee therefor shall be a lien in the judgment. It shall be the responsibility of
the clerk of Court or his duly-authorized deputy to enforce the lien, assess and collect the
additional fee.
Q: When can this possibly happen?
A: That can happen for example if I ask for damages. A man was hospitalized because of physical injuries.
Nag file siya ng kaso. Sabi ng court, may damages ito. So the court acknowledged the claim of P300,000. But
after the case is filed, di pa rin siya nakabayad sa hospital. After filing, marami pang gastos! So in other words
he might ask from the court another P 50,000.
Q: Can the court award the P 50,000?
A: Yes, because the additional expenses came only after the filing of the case. The additional
expenses occurred only after filing the case. So nagkulang ngayon ang docket fee. Bayaran mo,
don’t dismiss the case!
The Sun Insurance is a leading case on docket fee. It was followed with a third case in December 1989
which further clarified the SUN INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE
180 SCRA 433 [1989]
NOTE: When this case was filed, wala pa yong INSURANCE. The guiding rule was still
MANCHESTER. But while this was pending lumabas na yong SUN INSURANCE.
FACTS: The case was for recovery of land with damages (accion publiciana). So it is not purely
for damages. So how will you assess the filling fees? Based on the value of the land, binayaran ng
plaintiff ang docket fee. Defendant moved to dismiss based on MANCHESTER because the plaintiff
did not specify in the complaint how much damages he was claiming. Now the RTC of Tagum denies
the motion to dismiss. The defendant goes to the SC citing MANCHESTER.
Of course sabi ng SC wala na ang Manchester because of Sun Insurance. But here is another
rule:
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HELD: Dalawa ang filing fee: the assessed value of the land and for the damages.
There are two (2) options here: (1.) Kung nabayaran ang docket fee for the recovery of
land pero wala ang para sa damages, do not dismiss the entire case! That is crazy if you
will dismiss the entire case kasi nagbayad man siya ng docket fee for the recovery of the
land. Just do not consider the claim for the damages. Or, (2.) second option, citing SUN
INSURANCE, give him reasonable time to pay the balance. So that's the case of TACAY.
“Where the action involves real property and a related claim for damages as well,
the legal fees shall be assessed on the basis of both (a) the value of the property and
(b) the total amount of related damages sought. The court acquires jurisdiction over the
action if the filing of the initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of
the time of full payment of the fees within such reasonable time as the court may grant,
unless, of course, prescription has set in the meantime.”
Now, there are other interesting cases on the issue on docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS
171 SCRA 674 [1989]
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex, Mobil, etc.) of the Philippines for
infringement of patent with prayer for the payment of reasonable compensation for damages.
According to him, these companies used in their operation a certain type of machine which he
claimed he invented. His patent was infringed. Thus, all these companies are all liable to him for
royalties. The estimated yearly royalty due him is P236,572. Since the violation has been for many
years already, his claims reached millions. The trial court ordered him to pay P945,636.90 as docket
fee. He had no money so he questioned it. So sabi rig court: “We will allow you to file the case and
the docket fee is deductible from whatever judgment of damages shall be awarded by the court.”
So, parang file now pay later.
HELD: There is no such thing as file now pay later. No justification can be found to
convert such payment to something akin to a contingent fee which would depend on the
result of the case. Hindi pwede sa gobyerno yan! Example is kung matalo ka sa kaso – the case is
dismissed. Tabla ang gobyerno? So, di pwede yan!
“Filing fees are intended to take care of court expenses in the handling of cases in terms of cost
of supplies, use of equipments, salaries and fringe benefits of personnel, etc., computed as to man
hours used in handling of each case. The payment of said fees therefore, cannot be made
dependent on the result of the action taken, without entailing tremendous losses to the government
and to the judiciary in particular.”
Alam ninyo, ang dapat sana n'yang ginawa, nag file sya ng motion to allow him to litigate as a pauper. In
legal ethics, pwede yan sa abogado – yung contingent fee: “Attorney, will you handle my case? Wala akong
pera. I will offer a contingent fee.” “Okay, I’ll handle your case. Pag-talo, wala kang utang. Pag panalo,
kalahati sa akin.” Yan! Pwede yan. Pero sa gobyerno, wala yan because usually the judiciary gets its budget
from the filing fees.
LACSON vs. REYES
182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a motion to direct the plaintiff to pay
him his attorney’s fees – a motion for payment of attorney’s fees. So sabi ng court: “Attorney,
magbayad ka ng docket fee.” “Bakit? Motion nga lang yan, may docket fee pa? Grabeeh!”
HELD: No, bayad ka uli. “It may be true that the claim for attorney's fees was but an
incident in the main case, still, it is not an escape valve from the payment of docket fees
because as in all actions, whether separate or as an offshoot of a pending proceeding,
the payment of docket fees is mandatory. The docket fee should be paid before the court
would validly act on the motion.”
SUSON vs. COURT OF APPEALS
278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the case
because it should be filed in Cebu. Mortz wrote a letter to the Office of the Court Administrator
(OCA) asking that the docket fee paid in Leyte be considered applicable to Cebu. OCA granted his
request.
Charles questioned it because of the rule that the payment of docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to exempt any party not
otherwise exempt under the law or under the Rules of Court in the payment of the
prescribed docket fees. It may be noteworthy to mention here that even in the Supreme
Court, there are numerous instances when a litigant has had to re-file a petition
previously dismissed by the Court due to a technicality (violation of a pertinent
Circular), and in these instances, the litigant is required to pay the prescribed docket
fee and not apply to the re-filed case the docket fees paid in the earlier dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint cannot be deemed to have been ‘refiled’ in Cebu City because it was not originally filed in the same court but in the RTC Leyte. Thus,
when Mortz’s complaint was docketed by the clerk of court of the RTC Cebu City, it became an
entirely separate case from that was dismissed by the RTC of Leyte due to improper venue. As far
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as the case in Cebu is concerned, while undoubtedly the order of dismissal is not an adjudication on
the merits of the case, the order, nevertheless, is a final order. This means that when private
respondent did not appeal therefrom, the order became final and executory for all legal intents and
purposes.”
DE LEON vs. COURT OF APPEALS
287 SCRA 94 [March 6, 1998]
FACTS: The question for decision is whether in assessing the docket fees to be paid for the filing
of an action for annulment or rescission of a contract of sale, the value of the real property, subject
matter of the contract, should be used as basis, or whether the action should be considered as one
which is not capable of pecuniary estimation and therefore the fee charged should be a flat rate of
P400.00 as provided in Rule 141, Section 7(b)(1) of the Rules of Court.
Polgas argued that an action for annulment or rescission of a contract of sale of real property is
a real action and, therefore, the amount of the docket fees to be paid by Dagul should be based
either on the assessed value of the property, subject matter of the action, or its estimated value as
alleged in the complaint.
Since Dagul alleged that the land, in which they claimed an interest as heirs, had been sold for
P4,378,000.00 to Polgas, this amount should be considered the estimated value of the land for the
purpose of determining the docket fees.
Dagul countered that an action for annulment or rescission of a contract of sale of real property
is incapable of pecuniary estimation and, so, the docket fees should be the fixed amount of P400.00
in Rule 141, Section 7(b).
HELD: Dagul is correct. “In determining whether an action is one the subject matter of which is
not capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the
nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of
money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would depend on the amount of the claim. “
However, where the basic issue is something other than the right to recover a sum of
money, or where the money claim is purely incidental to, or a consequence of, the
principal relief sought, like in suits to have the defendant perform his part of the
contract (specific performance) and in actions for support, or for annulment of a
judgment or to foreclose a mortgage, this Court has considered such actions as cases
where the subject of the litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance.”
“The rationale of the rule is plainly that the second class cases, besides the determination of
damages, demand an inquiry into other factors which the law has deemed to be more within the
competence of courts of first instance, which were the lowest courts of record at the time that the
first organic laws of the Judiciary were enacted allocating jurisdiction.”
“Actions for specific performance of contracts have been expressly pronounced to be exclusively
cognizable by courts of first instance and no cogent reason appears, and none is here advanced by
the parties, why an action for rescission (or resolution) should be differently treated, a "rescission"
being a counterpart, so to speak, of ‘specific performance’.”
“In both cases, the court would certainly have to undertake an investigation into facts that
would justify one act or the other. No award for damages may be had in an action for rescission
without first conducting an inquiry into matters which would justify the setting aside of a contract.
Issues of the same nature may be raised by a party against whom an action for rescission has been
brought, or by the plaintiff himself.”
“It is, therefore, difficult to see why a prayer for damages in an action for rescission should be
taken as the basis for concluding such action as one capable of pecuniary estimation — a prayer
which must be included in the main action if plaintiff is to be compensated for what he may have
suffered as a result of the breach committed by defendant, and not later on precluded from
recovering damages by the rule against splitting a cause of action and discouraging multiplicity of
suits.”
“Thus, although eventually the result may be the recovery of land, it is the nature of the action
as one for rescission of contract which is controlling.”
“Since the action of Polgas against Dagul is solely for annulment or rescission which is not
susceptible of pecuniary estimation, the action should not be confused and equated with the ‘value
of the property’ subject of the transaction; that by the very nature of the case, the allegations, and
specific prayer in the complaint, sans any prayer for recovery of money and/or value of the
transaction, or for actual or compensatory damages, the assessment and collection of the legal fees
should not be intertwined with the merits of the case and/or what may be its end result.”
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]:
“Provided further, That where there are several claims or causes of actions
between the same or different parties, embodied in the same complaint, the amount
of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different
transactions.”
What do you call that rule? The TOTALITY RULE.
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ILLUSTRATION: Joinder of causes of action. The defendant secured from me two or more loans. Let’s say,
apat na utang covered by four (4) promissory notes and all of them are due and he has not paid me any. Let's
say each note covers a principal amount of P75,000. Now, I decided to file one complaint embodying my four
causes of action against him although I have the option also to file four separate complaints . If you will look at
the value of each claim which is P75,000 that is triable by the MTC. But if you will add the four claims that will
be P300,000.00.
Q: Which will prevail? The amount of each of the claim or the total?
A: The total amount will prevail. So it should be filed in the RTC. That is the totality rule.
Never mind that there are four (4) separate loans because the law says “irrespective of
whatever the cause of action arose out of the same or different transactions.” Now in that
example, there is only one plaintiff and one defendant. The plaintiff has four claims against the
same defendant. Now suppose there are 4 plaintiffs suing the same defendant in what is called in
procedure as joinder of causes of action and joinder of parties.
EXAMPLE: There are four (4) passengers riding on a public vehicle. They were all injured when the bus met
an accident and all of them were hospitalized. So after they were discharged, the four of them wanted to sue
the bus company for damages arising from contract of carriage or culpa contractual. Since they hired the same
lawyer, the lawyer said, “Why will I file 4 complaints? Isahin na lang. I will join them.” In effect, he joined 4
causes of action.
Q: The same question will arise. What will be now the basis of jurisdiction? The claim of every plaintiff or the
total claims of the 4 plaintiffs?
A: The total claims. You apply the totality rule because the law says “where there are several
claims or cause of action between the same or different parties.” So whether the parties are the
same or the parties are different embodied in the same complaint the amount of the demand shall
be the totality of the claims the totality rule applies in both situations.
We will now go to paragraph [2] of Section 33.
[2] Exclusive original jurisdiction over cases of forcible entry and unlawful
detainer: Provided, That when, in such cases, the defendant raises the question of
ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession. x x x x”
This is related to the Law on Property – FORCIBLE ENTRY (recovery of physical possession, e.g.
squatting) and UNLAWFUL DETAINER (e.g. you eject a lessee does not pay his rent.) – MTC lahat
iyan. The two cases should not be confused with accion publiciana which is also the recovery of
possession but that is a better right. Now, in unlawful detainer, the plaintiff also prays not only to
eject the defendant but also to claim for back rentals or the reasonable amount of the use and
occupation of the property in case of forcible entry.
Q: Suppose the unpaid rentals already amount to almost half a million pesos – so, unlawful detainer plus
back rentals of half a million. Where should the case be filed?
A: The case should still be filed with the MTC. What determines jurisdiction is the nature of the action, and
not the amount of recoverable rentals. Kahit na one (1) million pa yan, MTC pa rin yan.
Q: In an action for forcible entry or unlawful detainer, can the party present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate ownership. That has to be threshed out in the
proper civil action in the RTC. But if evidence of ownership is presented in the forcible entry or unlawful detainer
case, it is only incidental and it is only resolved to determine the issue of possession. But the declaration of
ownership is not final – that is only prima facie. The question of ownership must be litigated in a separate action
in the RTC.
Let us now proceed to the third paragraph of Section 33 as amended by R.A. 7691:
[3] Exclusive original jurisdiction in all civil actions which involve title to, or possession of,
real property or any interest therein where the assessed value of the property or interest therein
does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where
such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in
cases of land not declared for tax purposes, the value of such property shall be determined by
the assessed value of the adjacent lots. (As amended by RA 7691)
Aside from forcible entry and unlawful detainer, MTCs have now jurisdiction over other real
actions like accion publiciana and accion reinvidicatoria cases where the assessed value of the land
should be P20,000 or less. In Metro Manila, it is P50,000 or less. That is the amendment brought
about by RA 7691 which expanded the jurisdiction of the MTC.
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34.
Delegated Jurisdiction in Cadastral and Land Registration Cases. MetTCs, MTCs and MCTCs may be assigned by the Supreme Court to hear and
determine cadastral or land registration cases covering lots where there is no
controversy or opposition, or contested lots where the value of which does not
exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by
the affidavit of the claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declarations of the real property.
Their decisions in these cases shall be appealable in the same manner as decisions
of the RTCs. (As amended by RA 7691)
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Review: These are related to your study of Land, Titles and Deeds (The Property Registration Decree) When
you file a petition for land registration, the object is to have your property registered and fall under the Torrens
System of the Land Registration. Patituluhan ba! Now, what is the difference between a land registration
proceeding and a cadastral proceeding? Cadastral is compulsory registration.
Q: Now, what is this delegated jurisdiction all about?
A: It refers only to cadastral and land registration cases which involve the titling of property under the
Torrens system or cadastral land registration.
Under the Property Registration Decree, only the RTC has authority to entertain land registration and
cadastral cases. But now, Section 34 gives the Supreme Court the authority to DELEGATE MTCs to hear and
decide land registration and cadastral cases under the following conditions:
1.) when there is no controversy or nobody is contesting your petition; or
2.) even if the petition is contested where the value of the land to be titled does not exceed
P100,000.
In which case, these MTCs can decide and their decisions are appealable directly to the CA.
Para bang acting RTC sila ba. That’s what it is called delegated jurisdiction. ‘Delegate’ means it
really has to be assigned to you.
Now do not confuse this P100,000 (Section 34) with the P20,000 under Section 33. Section 34 deals with
cadastral and land registration cases. Section 33 involves civil cases (accion publiciana, etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35.
Special jurisdiction in certain cases.
- In the absence of all the
Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal
Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of
habeas corpus or applications for bail in criminal cases in the province or city where
the absent Regional Trial Judges sit.
This is what we call special jurisdiction. That only applies to two (2) types of cases: (1) Habeas corpus
and (2) hearing of petitions for bail.
Remember that habeas corpus is not within the jurisdiction of the MTC. It is with the RTC. Also, the hearing
on petition for bail, RTC yan because the offense may be a heinous one, but under the law on criminal
procedure you can file a petition for bail to have your temporary freedom while the case is going on. That’s
supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are sick or all of them are attending a convention
(this actually happened in Davao in 1990) Section 35 provides that the MTC, in the absence of RTC judges, can
hear and decide on habeas corpus case petitions and applications or petitions for bail in criminal cases. So
acting pa rin yan because they are urgent and the liberty of a person is at stake.
That is allowed because of the urgency of the situation. There is no need for a SC authorization. However,
this is only allowed in the absence of the RTC judges. But if the RTC judge comes back, he has to take over the
petition.
So with that we are through with the jurisdiction of our courts. So we will now proceed to remedial law
proper.
CIVIL PROCEDURE PROPER
Laws are classified as either Remedial or Substantive Law. Remedial Law is also known as Adjective or
Procedural Law.
REMEDIAL LAW vs. SUBSTANTIVE LAW
Q: Distinguish Remedial law from Substantive law?
A: SUBSTANTIVE LAW is that branch of the law which creates, defines and regulates rights. (Bustos vs.
Lucero, 81 Phil. 640; Ballentine’s Law Dict., 2nd., pp. 66, 1023) Like the Civil Code, the rights of children,
husband and wife, creditor and debtor are all found there.
REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress
for their invasion. (Ibid) Example of Remedial Law is the Rules of Court.
So a right is useless unless you enforce it. And the manner of enforcing rights is now prescribed by remedial
law. Like in civil cases, my neighbor borrowed from me but until now, despite several demands, he refused to
pay. Under the law on Obligations and Contracts, I have the right to collect. But how do I collect? Is it by
writing a letter to the judge, “Dear Judge…”? or Is it by calling him on the phone? I-text ko kaya? Di puwede
yan! There must be a procedure. That is where the Civil Code leaves you behind and that is where the Rules of
Court will take over. So the 2 laws go hand in hand. That is what the SC said in the 1992 case of
DE DIOS vs. COURT OF APPEALS
212 SCRA 519 [1992] Cruz, J.
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HELD: The 2 laws have a symbiotic relationship. They go hand in hand – one supports the other.
They are not antagonistic towards each other.
“Procedural rules are designed to insure the orderly and expeditious administration of justice by
providing for a practical system by which the parties to a litigation may be accorded a full and fair
opportunity to present their respective positions and refute each other's submissions under the
prescribed requirements, conditions and limitations. Adjective law is not the counterfoil of
substantive law. In fact, there is a symbiotic relationship between them. By complying faithfully with
the Rules of Court, the bench and the bar are better able to discuss, analyze and understand
substantive rights and duties and consequently to more effectively protect and enforce them.”
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law.
A: There are 2 aspects of Remedial Law:
1.) PUBLIC ASPECT – one which affords a remedy in favor of the State against the individual
(e.g. criminal procedure) or in favor of the individual against the State (e.g. habeas corpus)
on the other hand,
2.) PRIVATE ASPECT – one which affords a remedy in favor of an individual against another
individual, like the rules on civil procedure. (Gamboa’s Introduction to Philippine Law, 6th
Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE PHILIPPINES
The origin of our law on procedure is American. Forget the law on procedure during the Spanish regime. But
the first known ancestor of the law on Civil Procedure was the old Act 190, otherwise known as the Code of Civil
Procedure, which was enacted on August 7, 1901 by the United States and Philippine Commission.
And that was the law until 1940 because on July 01,1940 the SC enacted the Rules of Court which we now
call the Old Rules of Court. That continued for another 24 years until January 01, 1964 when the SC enacted the
Revised Rules of Court repealing the Old Rules of Court. And that continued for another 33 years until July
01,1997 where the SC enacted and which took effect on that day (July 01, 1997) the New Rules on Civil
Procedure.
SUMMARY:
1.) First Law – August 07, 1901 – Act 190 – Code of Civil Procedure (40 years)
2.) Second Law – July 01, 1940 – Old Rules of Court (24 years)
3.) Third Law – January 01, 1964 – Revised Rules of Court (33 years)
4.) Fourth Law – July 01, 1997 – New Rules of Civil Procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE
Well of course the sources are almost the same as the prior law. The old Rules of Court is also a source.
Many provisions were taken from the 1964 Rules, substantive law like the Civil Code and jurisprudence. And of
course SC circulars. Many circulars are now incorporated under the new rule. So those are the main sources.
1.)
2.)
3.)
4.)
SOURCES:
Previous Rules of Court;
Jurisprudence;
New Civil Code;
SC Circulars
RULE-MAKING POWER OF THE SUPREME COURT
The Rules of Court (1940, 1964, 1997) have all been enacted by tile SC. It is law, not enacted by
Congress but enacted by the SC.
Q: What is the authority of the SC to enact a law when actually the role of the judiciary is only to interpret
the law? Is this not a violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the present rules is what you call its rule -making
power which provision was found in the 1935, 1973 and 1987 Constitutions. Based on the present law, the
rule-making power of the SC is expressed in Article VIII, Section 5, paragraph [5] which is substantially the same
as the 1935 and 1973 Constitutions. Only everytime they amend the Constitution, it is getting longer and
longer.
Rut the pertinent portion which has not been changed is that the SC “shall have the power to
promulgate rules on pleading, practice and procedure.” That is the authority of the SC in enacting
the Rules of Court. But you should know also the limitations.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
The Constitution has also placed limitations on these powers. As currently worded, one limitation provided
for by the Article is “the rules of procedure to be enacted by the SC shall provide for a simplified and
inexpensive procedure for the speedy disposition of cases.” The second one is: “the rules shall be
uniform for all courts of the same grade.” And the third is: “the rules shall not diminish, increase
or modify substantive rights.”
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LIMITATIONS :
1. The Rules of Court shall provide a simplified and inexpensive procedure for the
speedy disposition of cases;
2. The Rules of Court shall be uniform for all courts of the same grade; and
3. The Rules of Court shall not diminish, modify or increase substantive rights.
Substantive rights are created by substantive law so the Rules of Procedure should not increase, diminish or
modify them. In effect, the Rules of Court should not amend the substantive law. It can only interpret
substantive law but should not change it completely. Those are the limitations. With that we are now ready to
tackle the 1997 rules on civil procedure.
Rule 01
GENERAL PROVISIONS
SECTION 1. Title of the Rules. These Rules shall be known and cited as the Rules of
Court.
SEC. 2. In what courts applicable. These Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court.
Section 1 provides the title of the Rule – Rules of Court. And Section 2, “these rules shall apply in all the
courts except as otherwise provided by the Supreme Court.” Meaning, applicable to all courts except when the
SC say otherwise. For example: The SUMMARY RULES on procedure which is applicable to some cases in the
MTC.
Another example of when the SC say otherwise is Section 4 – that the rules shall not apply to
election cases, land registration, cadastral, naturalization, insolvency proceedings and other cases
not herein provided for except by analogy. That is formerly Rule 143. Ngayon nilagay nila sa umpisa. The
placement is better so that we will see it immediately. That is actually not a new provision. That’s an old one. It
used to be in Rule 143, now it is in Rule 1.
Sec. 3. Cases governed. These Rules shall govern the procedure to be observed in
actions, civil or criminal, and special proceedings.
xxxxxx
Now, some people are asking me, “Akala ko ba civil procedure ito, bakit merong criminal? How come it
mentions criminal cases and definitions when it is supposed to be 1997 Rules on Civil Procedure?
NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, “These rules shall be
known as the ‘Rules of Court.’” This is the common denominator from the first to the last Rule. That’s why it
says there ‘special proceedings,’ ‘civil cases’ and ‘criminal cases.’ Now we are not interested in criminal cases
of course. Civil action na larg tayo muna.
xxxxx
(a) A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules
for ordinary civil actions, subject to the specific rules prescribed for a special civil
action.
xxxxx
Well the definition of a civil action is there. The definition now becomes shorter compared to the previous
definition. It’s the same definition. It has only been shortened.
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. So, that is the purpose of a civil suit – to enforce or protect your right or you
sue somebody for the purpose of preventing or redressing a wrong.
CLASSIFICATION OF CIVIL ACTIONS
Q: Classify civil actions.
A: The following:
I.
As to NATURE (Section 3 [a])
a.) Ordinary Civil Actions
b.) Special Civil Actions
II. As to CAUSE or FOUNDATION:
a.) Real Actions
b.) Personal Actions
c.) Mixed Actions
III. As to PLACE OF FILING
a.) Local Actions
b.) Transitory Actions
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IV. As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem
I. CIVIL ACTION; CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. And the actions not among those mentioned is
automatically ordinary. And even at this stage, you should be able to give already what. are the special civil
actions. So, it is a matter of looking at the table of contents.
Rules 62 to 71: Interpleader, Declaratory Relief, Certiorari, Prohibition, Mandamus, Quo Warranto,
Expropriation, Foreclosure of Mortgage, Partition, Forcible Entry, Unlawful Detainer and Contempt. There is a
new one – Review of Final Decisions or Resolutions of the COMELEC and COA under Rule 64. But actually it says
there, it is governed by Rule 65. So in other words Certiorari (Rule 65) pa rin although it’s a new rule now. Rule
64 is entitled Review of Decisions of the COMELEC and the COA, but it shall he governed by Rule 65 on
Certiorari .
Q: What is so important in distinguishing a special civil action from an ordinary civil action?
A: What makes an action special is simply because of the fact that there are some specific rules
prescribed for them which are not found in other rules. But to say that the rules on ordinary civil
actions do not apply to special civil actions is false. The law is very clear. Both are governed by the
rules on ordinary civil actions subject to the specific rules.
Therefore, in case of conflict between the specific rule governing a particular type of civil action and the
ordinary, then you follow the specific provision. But if the rules on special civil actions are silent, apply the
ordinary rules.
Give an example of a case where in the absence of a special provision in the rules on special civil actions
the court had to apply the rules on ordinary civil actions by analogy. The case of
AMBERTI vs. COURT OF APPEALS
195 SCRA 659 [1991]
FACTS: This case involved a petition for certiorari (special civil action under Rule 65) and then
before the respondent could answer the petition, he withdrew the petition. And then later on he
changed his mind. He re-filed the petition. The question that was asked by the SC is when you file a
special civil action for certiorari and then before the other party could answer you withdraw it, is the
withdrawal with or without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC had to resort to the ordinary rules
by analogy.
HELD: Certiorari is similar to appeal although it is not really an appeal. And the SC
looked at the law on appeal. What happens when you perfect your appeal and then later
on you withdraw your appeal? What will happen to the order or judgment? Rule 50 says
that if you withdraw the appeal, the judgment appealed from will now become final and
executory. Therefore, since it is now final and executory, you cannot change it anymore.
“Applying the foregoing rules in a supplementary manner (or by analogy), upon the
withdrawal of a petition in a special civil action before the answer or comment thereto
has been filed, the case shall stand as though no appeal has been taken, so that the
judgment or order of the lower court being questioned becomes immediately final and
executory. Thus, a resolution granting the withdrawal of such a petition is with prejudice
and petitioner is precluded from bringing a second action based on the same subject
matter.”
So that’s a perfect example of the application of ordinary rules in special civil actions.
Now, there are other classifications of civil actions which are not expressly stated in Section 3. The only one
stated there is ordinary and special.
II. CIVIL ACTIONS; CLASSIFICATION AS TO CAUSE OF FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
An action is either a real or personal action. And that is important because of Rule 4 – the venue for real
actions is different from the venue for personal actions.
A REAL ACTION is briefly described as an action where the issue or the subject involved is title, ownership,
possession or interest over a real property like accion publiciana, forcible entry, unlawful detainer, foreclosure of
mortgage or real property, partition of real property. (c.f. Section 19, BP 129 – controversy relates to real
property)
On the other hand, when the issue is not one of those – meaning, it is founded on privity of contract, or on
quasi-delict, such as actions for a sum of money, or damages, for the enforcement or resolution of a contract, or
for recovery of personal property, these are the PERSONAL ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765;
Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006, Oct. 31, 1957)
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Some text writers give a third classification: the MIXED ACTIONS where there is a mixture of real and
personal actions. Mixed actions are such as pertain in some degree to both real and personal and, therefore, are
properly reducible to neither of them, being brought for the specific recovery of land and for damages
sustained in respect of such land. (Dela Cruz vs. Seminary of Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages. So that’s a mixed action. Although
it is more of real rather than personal. If the damage is only incidental, then it is more of a real
action rather than a personal action like the case of TACAY. The claim for damages is incidental,
the main purpose is recovery of possession of land.
III. CIVIL ACTIONS; CLASSIFICATION AS TO THE PLACE OF FILING:
LOCAL ACTIONS and TRANSITORY ACTIONS
A LOCAL ACTIONS is an action which can only be instituted in a particular place whereas a personal action
follows the residence of the parties. Good examples of local actions are real actions. Real actions are also
automatically local actions. They can only be instituted in the place where the property is situated. This is
already provided by law (e.g. accion publiciana, forcible entry, unlawful detainer – can only be filed where the
land is situated.)
TRANSITORY ACTIONS are those which follow the party wherever he may reside. (1 Am. Jur. 430) Personal
actions are transitory – it is based on where the plaintiff or where the defendant resides at the option or election
of the plaintiff. It is based on the residence of the parties.
We will go to the fourth classification as to object of the suit.
IV. CIVIL ACTIONS; CLASSIFICATION AS TO OBJECT:
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
How do we differentiate one from the other? The SC in the past has given the definition in some cases
which definition appears in many books as quoted by authors. But the trouble with these definitions,
sometimes, the more you read it the more you don’t understand what the definition is all about. For example:
“If the technical object of the suit is to establish a claim generally against some particular
persons, with a judgment which, in theory, at least, binds his body. or to bar some individual claim
or objection, so that only certain persons are entitled to be heard, the action is IN PERSONAM.”
(Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
But, “if the object of the suit is to bar indifferently all who might be minded to make an
objection of any sort against the rights sought to be established, and if anyone in the world has a
right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the
action is IN REM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
To simplify the definition:
ACTION IN PERSONAM – any judgment that the court will render in that case binds only the parties to the
action and their privies or their successors-in-interest.
ACTION IN REM – any judgment with the court will render in the case binds not only the parties to the case
but the whole world, then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. COURT OF APPEALS
181 SCRA 9
HELD: “Actions in personam and actions in rem differ in that the former are directed
against specific persons and seek personal judgments, while the latter are directed
against the thing or property or status of a person and seek judgments with respect
thereto as against the whole world.”
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court: “Alright
Momma Jessa, you are the winner and you are entitled to the land.” Now, here comes Baby Maya. Momma Jessa
says, “Wala na iyan, tapos na iyan. In the case, that was already decided that I am entitled.” Sabi ni Baby
Maya, “Ah, that is between you (Momma Jessa) and Little Lulu. But I’m different. I have evidence to prove that
my right is better than yours. I am not bound by that decision.”
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she is not
a party. Hence, the action between Momma Jessa and Little Lulu is an action in personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose
the husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court rendered
judgment annulling the marriage of Joshua and Tekla. It became final. Now, the status of the parties is SINGLE
na naman because the marriage is annulled. Joshua meets another girl, Maying, and courted her and told
Maying, “I would like to marry you.” Maying said, “I cannot marry you because I know you are married. How can
I marry you when you are already married?” Joshua said, “Not anymore. I’m no longer married because my
35
marriage with Tekla is already annulled and here is the decision. So, I’m single.” According Maying, “No, I am
not bound by that judgment because I was not a party to that case.”
Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and that
now you are single, is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are bound by the
judgment because it is directed against the whole world. Your status is to be respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor
( most
outstanding student of Pavarotti… ), to be considered a recognized child and the court said, “Yes, you are
declared a child of the defendant,” Rod the Tenor is now compelled to recognize you. Your status as a
recognized child is not only binding on your father but is binding on the whole world. Your status is
no longer unrecognized.
Take note, an action in rem and in personam have often been confused with the classification of real and
personal action. They sound almost the same. That an action in personam is also a personal action, or, when an
action is in rem it is also a real action – it is not true. That is a different classification. An action could be as to
cause – it could be real. As to object, it could be in personam. In the same manner, it could be personal action
but an action in rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It
is a REAL action. In real action, the subject is possession or ownership of real property. Any
judgment therein binds only the parties, and not the whole world. So, it is also an action IN
PERSONAM. It is a real action as to cause, but as to object, it is in personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action
because it does not involved his property. It is about status. But it is also IN REM because the
judgment therein is binding the whole world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges interchange
one with the other. Last year, I was reading the SCRA, I cannot remember the decision where before deciding,
the SC gave a lecture: The trouble with this case, the basic error of the court is that it confused real action with
an action in rem and an action in personam with a personal action a real action could be in personam and a
personal action could be in rem. So do not be confused.
QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem. “ QUASI” means
almost. So, ‘quasi in rem’ is almost in rem. Actually, it is in personam but almost in rem.
Q: Define action quasi in rem.
A: An action quasi in rem is actually in personam because it is directed only against a
particular individual but the purpose of the proceeding is to subject his property to the obligation
of lien burdening it. The object of the case is the sale or other disposition of property of the
defendant over which you have a right or lien over the property.
EXAMPLE: Foreclosure of Mortgage. Somebody borrows money from you and mortgages his land as security
for the loan. Then later, he cannot pay. You decide to institute foreclosure proceedings over the mortgage
property. I presume you know the object of the foreclosure. If the property is foreclosed, the property over which
you have a lien – a right because it is mortgaged to you – that property will be sold at public auction and the
proceeds will be given to the mortgagee or creditor in payment of the obligation.
ILLUSTRATION: An action to foreclose a mortgage is the best example of a civil action quasi in
rem because there is a defendant (mortgagor) and the object of the case is to have the property
mortgaged sold or disposed of in order to satisfy the mortgage lien of the mortgagee. It is in
personam because it is directed only against person who mortgaged to you. But once the property
is foreclosed, practically everybody has to respect it. Wala ka ng right doon sa property. Naunahan
ka na. That’s why it is called quasi in rem.
Or, to borrow the language of the SC in simplifying the term quasi in rem, quasi in rem means ‘against the
person in respect to the res, against the mortgagor in respect to the thing mortgaged.’
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding.
A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. (2a, R2)
Special proceedings should not be confused with a civil action. Special Proceedings are governed by Rules
72-109 of the Rules of Court. You look at the table of contents and you will see them. That is a third year
subject.
BAR QUESTION: Distinguish a civil action from a special proceeding.
A: The following:
1.) 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, whereas,
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A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right, or a
particular fact;
2.) In a CIVIL ACTION, there are two (2) definite and particular adverse parties, the party who
demands a right, called a plaintiff, and the other whom the right is sought, called a defendant,
whereas,
In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no definite adverse
party as the proceeding is usually considered to be against the whole world;
3.) A CIVIL ACTION requires the filing of formal pleadings, whereas
In a SPECIAL PROCEEDING, relief may be obtained by mere application or petition;
4.) The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement is the filing of
a notice of appeal, whereas
In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice of appeal, the
law requires the filing of a record on appeal.
Of course the basic distinction is found in Section 3 – 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.
Whereas, a special proceeding is a remedy by which a party seeks to establish a status, a right, or
a particular fact.
The object of a civil action is to enforce or protect a right or to prevent or redress a wrong. But the object of
a special proceeding is only to establish a status, a right or a particular fact.
If a creditor sues the debtor to collect an unpaid loan, is that a civil action or a special proceeding? That is a
civil action because the creditor wants to enforce or protect his right to collect. The creditor is compelling the
debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for ADOPTION. It is a special proceeding because the
purpose is to establish a status of parents and child who were not related to each other. In other words, to
create a relation of parents and child under the law between two people. The procedure in the law of adoption
will be studied in the subject on special proceedings.
There was one article which I read about adoption. This is how the author describes adoption:
“Adoption is one of the sacred mysteries of the law. It concerns the making of a natural
person as a legitimate child of another person without the intervention of sex. A man becomes
a father of the child he did not sire. A woman becomes the mother of a child she did not bear.
It is through the magic or fiction of the law that adopters become parents of children unrelated
to them by blood, or if related, the relationship is one of illegitimacy.”
So you can adopt you own illegitimate child for the purpose of improving his status. So, when you file a
petition for adoption, you are not suing somebody to enforce or protect a right or prevent or redress a wrong.
The purpose is to create a status of parent and child between 2 people who are not related to each other.
And when you file a petition for adoption, you are not filing a case against anybody. Wala ka namang
kalaban, eh. There is a petitioner, the one who files, but there is no definite party. But it is directed against the
whole world because once the adoption is granted, then, as far as the whole world is concerned, they have to
respect the status that this is now your child. Kaya nga, it is in rem. Generally, special proceedings are in rem.
But since it is directed against the whole world, anyone in the world can come forward and oppose the
petition. Kaya nga may publication. You go to court and file your opposition. So wala kang kalaban na particular
person but in reality, anybody in the world can come forward and oppose it. That's the difference between a
special proceeding and a civil action.
Sec. 4. In what cases not applicable. - These Rules shall not apply to election
cases, land registration, cadastral, naturalization and insolvency proceedings, and
other cases not herein provided for, except by analogy or in a suppletory character
and whenever practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in court. A good example is Section 2 – these rules
shall apply in all the courts except as otherwise provided by the SC.
Q: What court proceedings where the Rules of Court are not applicable?
A: Election cases, land registration cases, cadastral cases, naturalization cases, insolvency proceedings, and
other cases not herein provided for except by analogy of for suppletory purposes.
In these cases, the Rules of Court are suppletory in character. In case of conflict between election law and
the Rules of Court, forget the Rules of Court. But when the Election Code is silent, you apply the Rules of Court
by analogy or for suppletory purposes.
There are some election cases which fall within the jurisdiction of the courts, not necessarily COMELEC. For
example, violation of election code where the party may be adjudged to go to jail. That is a criminal case. That
is governed by the rules on criminal procedure. It is more on imprisonment.
Sec. 5. Commencement of an action. - A civil action is commenced by the filing of
the original complaint in court. If an additional defendant is impleaded in a later
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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. (6a)
Q: When is a court action deemed commenced?
A: A civil action is commenced by the filing of the original complaint in court . Of course this is
not really complete. The filing of the original complaint in court must be accompanied by the
payment of the correct docket fee. A complaint is not deemed filed until the docket fee is paid. This
is important to determine the exact date that the action has commenced because it is from that
moment that the running of the prescriptive period is interrupted.
The second sentence of Section 5 states that, “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…”
Example: Today (November 19, 1997), I filed a complaint against A. So, the action is commenced on Nov.
19, 1997. However next month, say, December 19, if there is an additional defendant, the date of the
commencement of the action with regards to the additional defendant is not the date when the original action is
filed, but on the date when he was included in the amended pleading.
Last section. How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed in order to promote
their objective of securing a just, speedy and inexpensive disposition of every action
and proceeding. (2a)
So, the Rules of Court shall be interpreted liberally in order to promote their object which is to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding. The purpose of
Procedural Law is to hasten litigation. So you do not interpret it to prolong a case. That is based on the
principle of liberal construction. According to the SC in one case commenting on this:
DE GUZMAN vs. SANDIGANBAYAN
256 SCRA 171, (en banc)
HELD: “The Rules of Court was conceived and promulgated to set forth guidelines in the
dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise,
courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is
precisely why courts in rendering real justice have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the balance, technicalities take a backseat
against substantive rights, and not the other way around. Truly then, technicalities, should give
way to the realities of the situation.”
So, the purpose of procedure is to help the hand that dispenses justice and not to tie these hands.
Otherwise, the courts will become mere robots. And, as much as possible, courts should avoid technicalities. To
give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil.
315) Hindi yan espadahan na ang unang magsaksak, daog . That is not the concept of litigation. You do not lie
in ambush. That’s another pronouncement.
That’s why the SC said in another case:
SANTOS vs. COURT OF APPEALS
198 SCRA 806
HELD: Procedural “rules are not intended to hamper litigants or complicate litigation but,
indeed, to provide for a system under which suitors may be heard in the correct form and manner
and at the prescribed time in a peaceful confrontation before a judge whose authority they
acknowledge. The other alternative is the settlement of their conflict through the barrel of a gun.”
Meaning, the purpose of the rules is for people to fight each other in a civilized way. If you cannot accept
the judicial system, what is your alternative? The only alternative is to shoot your opponent. We will settle our
conflict through the barrel of a gun. Barilan na lang tayo. So if you do not accept the system of justice, that is
your alternative.
For all its shortcomings and its defects, the judicial system is still the civilized way of dealing with your
opponent.
BAR QUESTION: When may lapses in the literal observance in the Rules of Court be excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL
77 Phil. 523
HELD: Lapses in
1.) when
2.) when
3.) when
4.) when
the literal observance of a rule of procedure will be overlooked:
they do not involved public policy;
they arose from an honest mistake or unforeseen accident;
they have not prejudiced the adverse party; and
they have not deprived the court of its authority.
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One final note, while it is true that the Rules of Court should be liberally construed as a general
rule, there are certain provision which according to the SC, should be strictly construed because
they were intended precisely to minimize delay.
1.
2.
Reglementary periods
appeal
A good example would be provisions which prescribe the time during which certain acts are
going to be done, like the filing of an answer, because iif you will disregard this, it will promote
more delay rather than expediiite litigations.
Another example is the filing of a notice of appeal. Hindi mo pwedeng palitan yan. These are
the provisions which are to be strictly construed because while it is true that the Rules of
Procedure are to be liberally construed, it is not a license to completely ignore these rules. Even
the SC made the warning. Like in the cases of
ANTONIO vs. COURT OF APPEALS
167 SCRA 127
HELD: “It is the common practice of litigants who have no excuse for not observing the
procedural rules to minimize the same as mere technicalities. Then they cry for due process. These
procedural rules are in fact intended to ensure an orderly administration of justice precisely to
guarantee the enjoyment of substantive rights.”
LIMPOT vs. COURT OF APPEALS
170 SCRA 367
HELD: “Procedural rules are not be belittled or dismissed simply because their non-observance
may have resulted in prejudice to a party's substantive rights, as in this case. Like all rules, they are
required to be followed except only when for the most persuasive of reasons they may be relaxed to
relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness
in not complying with the procedure prescribed. While it is true that a litigation is not a game of
technicalities, this does not mean that the Rules of Court may be ignored at will and at random to
the prejudice of the orderly presentation and assessment of the issues and their just resolution.”
This reminds me of a lawyer who did not comply with the rules and he was arguing that the rules should be
liberally construed. And then the judge says: “There is a thin line between liberal construction of the rules and
gross ignorance of the rules!” Yaan! It is either you did not follow the rules strictly or you do not really know the
rules.
ORDINARY CIVIL ACTIONS
Rule 02
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil action must be based
on a cause of action. (n)
Section 1 of Rule 1 is entitled cause of action. That is an entirely new title, which is not found in the 1964
Rules. Section 1 expresses the principle that every ordinary civil action must be based on a cause of action.
That is a new provision but it is a fundamental principle all along – you cannot have a case unless you have a
cause of action.
As a matter of fact under Rule 16, one of the grounds for a motion to dismiss is that your pleading states no
cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act or omission by
which a party violates a right of another. (n)
Now, for the first time, Section 2, which is also a new provision, has incorporated the definition of what is a
cause of action. However, again, it is not a new principle because even under the 1964 Rules we must such
definition is already recognized.
Q: Define cause of action.
A: CAUSE OF ACTION is an act or omission by which a party violates a right of another.
Cause of Action; ELEMENTS:
Q: What are the ELEMENTS of cause of action ?
A: There are supposed to be 3 main elements: ROVID
1. a right pertaining to the plaintiff;
2. a correlative obligations of the defendant; and
3. violation of plaintiff's right by the defendant (also called delict)
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You remove one of these and there is no cause of action. You think of any case under the sun, it must have
all these elements. Now, there is a fourth element added by some cases and commentators – the element of
damage suffered by the plaintiff. So based on that, these are the elements of a cause of action:
1.
2.
3.
4.
a RIGHT pertaining to the plaintiff;
a CORRELATIVE OBLIGATIONS of the defendants;
a VIOLATION of plaintiff’s right; and
DAMAGE suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are you asking for? There can
be no action where no injury is sustained.
As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage without wrong
does not constitute a cause of action since damages are merely part of the remedy allowed for the injury
caused by a beach or wrong.
There can be damage without injury in those instances in which the loss harm was not the
result of a violation of a legal duty. These equations loss are after all called “damnum absque
injuria.” Another latin maxim, “accio non datur non damnificato”, which means there could be no
action where no injury is sustained. So that is part of the definition of cause of action. Damage
without injury does not create any cause of action.
So the elements are: right, obligation, violation and damage. These are the four elements of a cause of
action. You cannot imagine of any civil case where the 4 elements are not present.
EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring magbayad. Let’s
try to find out the elements.
RIGHT - the right of the creditor to get back his money;
OBLIGATION – The defendant has the obligation to pay back the loan under the law on contracts;
VIOLATION or delict or wrong – the account fell due and the debtor is supposed to pay the creditor, but
the former did not pay the latter;
DAMAGE. – the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint against somebody, you do not prepare
the complaint by enumerating the elements. In other words, nasa istorya man yan ba. It is up for the defendant
to analyze. It is the duty of the lawyer to analyze the complaint whether the 4 elements are present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street and a driver just
bump you there. And you are hospitalized. You fail to report for work.
RIGHT – it is the right of every person not to be molested. You have the right to walk peacefully and not
to be harmed;
OBLIGATION – it is the obligation of every person driving to be careful so that he will not bump other
people. You do not have to enter into a contract with a person saying you will not bump him;
DELICT or wrong – because of your recklessness, you violated his right by injuring him;
DAMAGE – I have to spend money in the hospital and I lost my income.
The 4 elements are present. So there is a cause of action. In other words, you cannot imagine a civil case
where the 4 elements are not present.
ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November 1998.
despite demands, still he has not paid you. Now, is there a cause of action?
And
RIGHT – the creditor has the right to collect;
OBLIGATION – every debtor has the obligation to pay;
DAMAGE – I have not recovered the money;
DELICT or wrong – there is NO delict yet.
Why? There is no delict yet because the account is payable next year pa. So, it is still premature to file a
collection case now because one element is missing. So, if I am the lawyer of the defendant, I will question
your complaint. It is not based on a cause of action. That is dismissable under Rule 16.
CAUSE OF ACTION vs. RIGHT OF ACTION
And of course, as part of the study of cause of action, we must be able to differentiate it from the so-called
right of action. These are basic fundamental issues in Civil Procedure: Distinguish a cause of action from a right
of action (bar question).
Q: Define right of action.
A: Right of action is the right of the plaintiff to bring an action and to prosecute that action to
final judgment. (Marquez vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action?
A: There are two (2) elements:
1.) the plaintiff must have a good cause of action; and
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2.) the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the SC said in the
case of
DE GUZMAN, JR. vs. COURT OF APPEALS
192 SCRA 507
HELD: “The right of action springs from the cause of action, but does
facts which constitute the cause of action have occurred. When there is
rights, then and not until then does the adjective or remedial law become
arise rights of action. There can be no right of action until there has been a
legal right – and it is then given by the adjective law.”
not accrue until all the
an invasion of primary
operative, and under it
wrong – a violation of a
So, there can be no right of action until there has been a wrong, a violation of a legal right. There can be no
right of action unless there is first a cause of action.
And you must comply with the conditions precedent. You cannot file a case unless you comply with certain
conditions and the best illustration of this element is the case of
PHIL. AMERICAN GENERAL INSURANCE CO. vs. SWEETLINES
212 SCRA 194
FACTS: This involves a shipped cargoes from Manila to Davao but the goods were damaged.
Based on damaged cargoes, the consignee filed a case against the carrier. Actually, in the bill of
lading, there is a stipulation that if the consignee wants to file a case arising from the contract of
carriage against the carrier, the consignee must first send a notice of loss to the carrier and then if
the carrier will not honor it, and that is the time the consignee can file a case before the court. Now,
he went to court directly without filing a notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did not comply with the
conditions precedent.
“The right of action does not arise until the performance of all conditions precedent to the
action. 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.”
“More particularly, where the contract of shipment contains a reasonable requirement of giving
notice of loss of or injury to the goods, the giving of such notice is a condition precedent to the
action for loss or injury or the right to enforce the carrier’s liability.”
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION.
A: The following are the distinctions:
1.) Cause of action is the delict or wrong committed by the defendant, whereas
Right of action refers to the right of the plaintiff to institute the action;
2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas
Right of action is regulated by procedural law;
“Right of action is a remedial right belonging to some persons, while cause of action is a
formal statement of the operative facts that give rise to such remedial right.” (De Guzman vs.
CA, supra)
3.) Right of action may be taken away by the running of statute of limitations, by estoppel or other
circumstances which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the cause of
action. After 10 years, the right to collect has prescribed and you cannot recover anything.
Actually, what is barred is his right of action, not the cause of action because the
moment he does not pay, there is already a wrong and you cannot erase a wrong. The
cause of action is not affected by prescription. In fact, the Civil Code provides that the
obligation is converted into natural obligation, which is based on equity rather than a
right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on
prescription. But what has prescribed? Is it the cause of action? No. The cause of action does not
prescribe. What has prescribed is the right of action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action . - A party may not institute more than
one suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?
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A: Splitting a cause of action is the practice of dividing one cause of action into different parts
and making each part a subject of a different complaint. (Bachrach vs. Icariñgal, 68 Phil. 287)
That practice is expressly prohibited by law as expressed in Section 3, “A party may not institute more
than one suit for a single cause of action.” The rule is simple: If there is one cause of action, you
file only one case. You cannot file two, three or four cases arising out of one cause of action,
otherwise you are splitting it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another action to collect
the interest; another action to collect attorney’s fees. So, there is only one note and you sue me three times but
there is only one cause of action. Now, under the law, you have split your cause of action. You should file only
one case to recover the principal and the interest as well as the attorney’s fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one case against
the owner of the vehicle for reimbursement of hospital expenses; one case to recover his expenses for
medicine; another one for doctor’s fees; then another case for the lost income. Practical by you have filed four
cases arising from one cause of action. Isang banggaan lang, naging apat ang kaso? Again, the Carlo here has
engaged in the prohibited practice of splitting cause of action. The correct procedure is that he should file one
action and demand the recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of . - If two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others.
(4a)
Q: And what are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the dismissal of other. That is what you call
LITIS PENDENTIA – there is another action pending between the same parties for the same
cause. This is one ground for dismissal of a case (Rule 16 – Motion to Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the same
party with the same cause of action. Under Section 4, one of them is subject to
dismissal.
2.) a judgment upon the merits in any one is available as a ground for the dismissal of the
others. That is what you call barred by prior judgment or RES ADJUDICATA, which is also a
ground for dismissal under Rule 16, Section 1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are reviving the same case –
you are filing again. Under Section 4, the judgment in the first case years ago would be cited as a
basis for the dismissal of the second case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations between the same
parties in regard to the same subject of controversy; to protect the defendant from unnecessary vexation; and
to avoid the costs incident to numerous suits. (Bachrach vs. Icariñgal, supra; Bacolod City vs. San Miguel, Inc.,
L-25134, Oct. 30, 1969)
Actually, the reason is common sense eh – to protect the defendant from unnecessary vexation. Why create
two cases when you have only one cause of action? And why make me spend more? Magasto yung balik-balik
sa court. It becomes an expensive process. And why should you harass somebody when he only committed one
wrong? You file a case against him but do not harass him more than once. Nemo debet vis vesare procuna em
iyadens cusa – “No man shall be twice vexed for one and the same cause.”
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?
A: The singleness of a cause of action is determined by the singleness of the delict or wrong
committed by the defendant and not by the number of remedies that the law grants the injured
party. Meaning, a single delict may give rise to two or more possible remedies but it does not mean
to say the injured party can avail of all those remedies simultaneously or one after another .
(Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a civil action for
specific performance or a civil action for rescission of contract. However, it does not mean to say that the
injured party can file both or one after the other. Otherwise, he will be splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of personal properties. I
think the law grants three remedies – (1) rescind the contract of sale; (2) exact fulfillment of obligation; and (3)
foreclosure of mortgage. But even the law on Sales is very clear: the choice of one automatically bars resort to
the other because it will be against splitting the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for non-payment of a
loan secured by a mortgaged say, piece of land: (1) foreclose the mortgage on the land; or (2) file an action to
collect the loan. Here, the bank cannot file a case the debtor to collect the loan and at the same time file an
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action to foreclose the mortgage for it will be splitting the cause of action. So it is either you enforce the
principal contract of loan, or, you enforce the accessory contract of mortgage. This is what happened in the
case of
DANAO vs. COURT OF APPEALS
154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank, mortgaged their property and then
they failed to pay. The bank filed a civil action to collect the loan. After filing a civil action to collect
the loan, the bank instituted an action to foreclose the mortgage.
HELD: “Anent real properties in particular, the Court has laid down the rule that a mortgage
creditor may institute against the mortgage debtor either a personal action for debt or a real action
to foreclose the mortgage. In other words, he may pursue either of the two remedies, but not both.”
“Evidently, the prior recourse of the creditor bank in filing a civil action against the Danao
spouses and subsequently resorting to the complaint of foreclosure proceedings, are not only a
demonstration of the prohibited splitting up of a cause of action but also of the resulting vexation
and oppression to the debtor.”
So those are examples of splitting a cause of action and illustrations of the rule that one cause of action
may give rise to two or more remedies but it does not follow that you can avail of all those remedies. One is
enough, otherwise, you will be splitting again you cause of action.
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION
Now, with respect to splitting a cause of action, you must familiarize yourselves on how this rule is applied
to breach of contract and if there are several stipulations. Sometimes it is easy to determine whether there is
one cause of action. Sometimes it is difficult. Sometimes you get confused, ‘ano ba ito? Isa lang ba ito o more
than one?’
RULE #1 (General Rule):
A contract embraces only one cause of action because it may be
violated only once, even if it contains several stipulations. (Quioque vs.
Bautista, L-13159, Feb. 28, 1962)
EXAMPLE: Pauline enters into a contract with Nudj which contains 3 stipulations: (#1) that next month,
Pauline will deliver to Nudj 100 sacks of rice; (#2) on the same date, Pauline will also deliver to Nudj 100 sacks
of corn; and (#3) on the same date, Pauline will also deliver to Nudj 100 sacks of sugar. When the day arrived,
nothing was delivered. So three stipulations were violated.
Q: How many causes of action does Nudj have against Pauline?
A: ONE. The contract is only one cause of action even if it contains several stipulations. The cause of action
is not based on the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):
A contract which provides for several stipulations to be performed
at different times gives rise to as many causes of action as there are
violations. (Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: A loan with a promissory note where the principal amount is payable in installment. There is one
promissory note where the loan is P300,000. And then the first installment is payable this year (1997). And then
the second installment is payable in 1998 and the third installment is payable in 1999 without any acceleration
clause. So, there is only one contract of loan but the principal is payable in three installments at different times.
For non- payment of the first installment this year (1997), the creditor can file one case. So
P100,000 for 1997 – one cause of action.
Q: Next year, he did not pay the second installment, can the creditor file another case?
A: YES, because this time it is the exception. Every installment is one cause of action even if
there is only one note. Remember that they are to be performed at different times.
RULE #3 (Exception to the exception):
All obligations which have matured at the time of the suit must be
integrated as one cause of action in one complaint, and those not so
included would be barred. (Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: In 1997, the debtor did not pay but the creditor did not file any case, pinabayaan lang niya. Then
in 1998, the second installment was not also paid. So dalawa na. The total claim now is P200,000. So the
creditor said, there are two unpaid installments—1997 and 1998! So dalawa na, I will file two cases.”
Q: Is the creditor correct?
A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor
has not filed any case for the collection of the first installment, this time, when he files for
collection of the unpaid second installment, everything must be integrated. So there should only
be one complaint for P200,000 representing the first and second installments. If you do not file a
claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You
should only file one action for P300,000 and you go back to the general rule.
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RULE #4 (Exception to Rule #2):
However, when the failure to comply with one of several
stipulations in a continuing contract constitutes a total breach, a
single cause of action for damages, actual as well as prospective,
arises from such breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first installment
from the debtor which the latter denied,! The signature in the note is not mine!”
Now, in that kind of statement, he is not only repudiating the first installment. He is
repudiating the entire note. So under rule #4, the creditor can file a case for the entire loan of
P300,000 because it has been repudiated. If you only file only one for the P100,000 which fell due,
then next year, file na naman, it will be useless because he will still maintain the same position,
“Wala akong utang sa iyo! Tigas ng ulo!” So you do not wait anymore for the 2nd and 3rd
installments to fall due. You file only one case for the entire breach. There is a total breach for a
continuing obligation and there is now only one cause of action for the entire promissory note
So theses are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an
opposing party, subject to the following conditions:
xxxxx
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 (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?
A: Joinder of causes of action is the provision of the Rules which allows a party to join in one
pleading two or more causes of actions against the opposing party.
PROBLEM: In 1994, the debtor secured a loan of P50,000 payable in 1997. In 1995, a second loan of
P50,000 payable in 1997 and then in 1996, another loan of P50,000 payable in 1997. So there are three debts
that will fall due in 1997. In 1997 when they became due, the creditor filed 3 cases against the debtor – one
case for every promissory note.
Q: Were the cases properly filed?
A: YES because there were 3 promissory notes. But the creditor can file one complaint to join
the three loans. This is called joinder of causes of action. This is different from the case of an
installment where there is only one loan although payable in three installments.
In the problem above, there are 3 loans, 3 promissory notes in 3 different years. So there are 3 causes of
action. And when you file one case for every promissory note, you are not violating the rule against splitting a
cause of action. You are actually not filing more than one case because there is one case for every loan.
However, while you are allowed to file three cases, Section 5 allows you to file only one case and that is called
joinder of causes of action.
THE PRINCIPLE: You cannot file more than one case when you have only one cause of action but
the law allows you to file one case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint for the 3 promissory notes?
A: NO, because joinder of causes of action is permissive. He may or may not. So the creditor may file
3 complaints for the 3 promissory notes, or, file only one complaint asserting the 3 claims for the 3 promissory
notes.
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action
Q: How may causes of action be joined?
A: Causes of action may be joined either: (a) alternatively or (b) cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is either one or the other. You are not seeking
relief from both but either one.
A CUMULATIVE JOINDER exists when you are seeking relief for all your causes of action.
ALTERNATIVE joinder; Example:
Aileen is the importer of the goods that were shipped on board a carrier. Upon reaching Davao City, they
were departed with the arrastre or stevedoring operator. The goods were delivered to Aileen in a damaged
condition, and then reklamo siya sa arrastre or stevedoring. Then the arraster says, “Damaged na dati yan
when it was unloaded from the carrier.” Then when Aileen went to the carrier, Carrier: “No, the damage
happened in their (arrastre’s) custody.”
Now, the Aileen here has two (2) possible causes of action: (1) an action against the stevedoring
operator under the contract of depositary under the law on Credit Transaction; Or, (2) an action against
the carrier under the Law on Transportation. So there are 2 possible causes of action.
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Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because Aileen is not claiming from both of them,
but either one or the other. Aileen is not sure so she decided to file a case against both of them. At least
isa sa kanila matamaan man ba.
ALTERNATIVE joinder; Another Example:
Chams is a passenger riding on a public utility vehicle which collided with another vehicle and she is
not sure who is at fault. If the fault lies with the other vehicle, and the driver of the bus where Chams
was riding is not at fault, then her cause of action against the other vehicle is quasi-delict. But if the
fault lies with the driver of the bus where she was riding, her cause of action is culpa contractual. So
she has 2 possible causes of action.
Q: Is it possible for Chams to file one complaint naming both the drivers or both operators as
defendants?
A: YES. Either of them is liable to her. That is alternative joinder of causes of action.
CUMULATIVE JOINDER; Example:
Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John “The Yellow
Man”. Pches is not claiming from either promissory notes but she is claiming all.
ANOTHER EXAMPLE: Roy “The Councilor,” an illegitimate child files a case against his father for
compulsory acknowledgment as illegitimate child and support. There are two causes of action which are
gained: an action for recognition and also for support. This is not alternative actions but rather, these
are cumulative. The child is asking for BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be correlated with Rule
3, Section 13 and Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is uncertain against
who of several persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may set forth
two or more statements of a claim or defense alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or defenses. When
two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?
A: Under Section 5, joinder of causes of action is allowed under the following conditions: PSRA
a.) The party joining the causes of action shall comply with the rules on joinder of parties;
b.) The joinder shall not include special civil actions or actions governed by special rules;
c.) Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided
one of the causes of action falls within the jurisdiction of said court and the venue lies
therein; and
d.) Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction. (5a)
a.) The party joining the causes of action shall comply
with the rules on joinder of parties
We will meet joinder of parties when we reach Rule 3, Section 6 which provides that two (2) or
more persons can join as plaintiffs in one complaint or can be joined as defendants in one
complaint, provided there is a common question of fact or law involved in that case.
EXAMPLE: Two or more passengers riding on the same bus, met an accident. All of them were injured. So
lahat sila may cause of action noh? Every passenger who gets injured has a cause of action. So they decided to
file a damage suit.
Q: Can they be joined in one complaint?
A: YES because there is a common question of fact or law. They are riding on the same bus, meeting
the same accident, against the same operator. So there is a joinder of parties under Rule 3. And if the joinder of
parties under Rule 3 is proper, then their causes of action can also be joined under Rule 2 because the condition
is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses owned by the one operator. They are on
different trips. One is going to Mati; one is going to General Santos; and one is going to Cotabato. All of them
met an accident. Well of course the same kind of case: damage suit, breach of contract against the same
operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The defense
of the operator here is different from his defense there. Meaning, passenger A has nothing to do
with the complaint of passenger B because there is no common denominator between them. So if
you cannot join them under Rule 3, the joinder of causes of action under Rule 2 is also improper.
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b.) The joinder shall not include special civil actions
or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The
reason here is simple: Special Civil Actions are governed by certain rules which do not apply to
ordinary civil actions. So a special civil action cannot be joined with an ordinary civil action, or, an
ordinary civil action cannot be joined with an action governed by special rules such as Election
cases, naturalization cases, insolvency cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC
126 SCRA 31
FACTS: (This is still a good ruling) A stockholder of a corporation who is also the creditor of the
corporation decided to file one complaint against the corporation asserting several causes of action,
among them is his rights as a stockholder under the Corporation Code and also his rights as a
creditor under the Civil Code.
HELD: The joinder is improper. In the first place, one is governed by a quasi-judicial body (SEC).
So how can the RTC try a case when the cause of action is pertaining to the SEC and it is governed
by the special rules of the SEC? So you cannot join that.
c.) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action
falls within the jurisdiction of said court and the venue lies therein
PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of land, the assessed
value of that is only P20,000. In another parcel of land, the assessed vaue is P1 million. I would like to file a case
of action publiciana against him. Dalawa eh – there are 2 lands encroached. The first accion publiciana is triable
by the MTC (P20,000). The other accion publiciana is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he
encroached in another land of mine in Davao City with an assessed value of P1 million. You will notice that in
the Tagum land, the jurisdiction is in the MTC for the case accion publiciana and the venue is Tagum because
the property is situated there. In the other case, the jurisdiction is in the RTC and the venue is Davao City.
Q: Can I file a case against Maceste joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million. And then he
encroached in another land of mine in Davao City with an assessed value of P1 million also. You will notice that
in the Tagum land, the jurisdiction is RTC for the case accion publiciana. In the other case, the jurisdiction is also
in the RTC of Davao City. So both actions, RTC.
Q: In which RTC will you file the case joining the causes of action?
A: Either Tagum or Davao City because both are RTCs.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he
encroached in another land of mine in Davao City with an assessed value of P20,000 also. In the Tagum land,
the jurisdiction is MTC for the case accion publiciana. In the other case, the jurisdiction is also in the MTC. So
both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of action falls within the jurisdiction of
said court and the venue lies therein. One of them belongs to the RTC. In the example, both
belong to the MTC.
PROBLEM: Maceste encroached on my land more than one year ago and the land has an assessed value of
only P20,000. So if I will file an accion publiciana, it has to be filed with the MTC. On the other hand, Aaron
encroached my other parcel of land more than one year ago and the assessed value of the land is P1 million. So
my cause of action there is also accion publiciana but triable by the RTC. so I decided to file a case naming both
of them as defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties. This time the parties are not the
same. Plus the fact that you might violate paragraph [a] – there is no common question of fact and
law between them.
PROBLEM: Maceste encroached on my land in Davao City on month ago and then he encroached on another
land of mine (assessed value of P1 million) in Davao City two years ago. Therefore, one case is forcible entry
triable by the MTC and the latter is accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC and RTC?
A: NO, you cannot join them because of paragraph [b] – a forcible entry is special civil action
which is also governed by the Summary Procedure. You cannot join a special civil action. So what is
violated here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE. There is nothing new here. So judiciary law,
totality rule, basta sums of money.
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SEC. 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a
ground for dismissal of an action. A misjoined cause of action may, on motion of a
party or on the initiative of the court, be severed and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action where joined in one complaint when they should
no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not proper
because a special civil action (forcible entry) cannot be joined. In this case there is misjoinder of
causes of action.
Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the
court that the misjoined case be severed and tried separately. Now, ang counterpart nito which is still
present is misjoinder of parties under Rule 3, Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor
non-joinder of parties ground for dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party or on its own initiative at any
stage of the action and on such terms as are just. A claim against a misjoined party
may be severed and proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of an action. Just
remove the misjoined cause of action or the misjoined party.
Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:
I.
II.
III.
IV.
V.
Real Parties in Interest
Representative Parties
Permissive Parties
Indispensable Parties
Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
persons, or entities authorized by law may be parties in a civil action. The term
"plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third
(fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the
defendant in a counterclaim, the cross-defendant, or other third (fourth, etc.)-party defendant.
(1a)
Q: Who may be parties to a civil case?
A: Only natural or juridical persons or entities authorized by law may be parties in a civil action .
So, you cannot sue or be sued unless you are a person. A dead man cannot sue and he cannot be
sued because he has no more personality.
That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito vs.
Paningkamot Store.” The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng tindahan iyan.
The correct procedure is you sue the owner because he is the real person. But the defect is not really
substantial. It is only a formal defect that can easily be corrected.
“ENTITIES AUTHORIZED BY LAW”
Q: Give an example of an entity authorized by law which can be sued although it is not a person.
A: The best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When two or more
persons not organized as an entity with juridical personality enter into u transaction,
they may be sued under the name by which they are generally or commonly known.
In the answer of such defendant the names and addresses of the persons
composing said entity must all be revealed.
Another example of an entity authorized by law which may not be a natural or juridical person
is a labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of
the of its members. Although it may not have been incorporated under the Corporation Law but
registered under the Labor Code.
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Q: Who are the plaintiffs, defendants?
A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant, the
cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim, the
cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections 6, 8 & 11.
I. REAL PARTIES IN INTEREST
Sec 2. Parties in interest. - A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted
or defended in the name of the real party in interest. (2a)
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be benefited or injured by the judgment in
the suit. (Section 2)
That is a new sentence taken form jurisprudence because the prior rule never gave a definition of real
parties in interest but jurisprudence gives a definition. That definition is taken from the leading case of
SALONGA VS. WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is defined and that definition has
been repeated through the years.
every action must be prosecuted or defended
in the name of the real party in interest
So a complaint is dismissible if it is not made in the name of the real party in interest.
In an action to recover a piece of land , you do not file a case against tenant. He is not the real
party in interest. You must file the case against the owner of the land.
When you are riding in a bus which collided and you were injured, do not file a case against the driver for
damages. Your contract in not with the driver. Your contract is with the operator. So you file a case of culpa
contractual against the owner or operator.
GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So
strangers, as a rule, have no business suing in a contract because they are not real parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation
pour autrui – Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car
with B for TPL. A bumped C. C can file a case against A and B to recover from the insurance
contract.
BALIWAG TRANSIT vs. COURT OF APPEALS
169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag buses met an accident. So, an action was
filed where the parents and the injured boy were the co-plaintiffs against Baliwag Transit. While the
case was going on, the boy entered into amicable settlement with the bus company. Based on the
settlement, Baliwag moved to dismiss the case. The parents objected, “We are objecting because
we are also plaintiffs. We didn’t know about the settlement. We were the ones who spent money,
therefore it should not be dismissed simply because our son is withdrawing the case.”
HELD: The parents are not the real party in interest. The were not the passengers. The real
parties in a contract of carriage are the parties to the contract itself. “In the absence of any contract
of carriage between the transportation company and the parents of the injured party, the parents
are not real parties in interest in an action for breach of contract.”
SALONGA vs. WARNER BARNES
88 Phil. 125 [Bar Problem]
FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines. So she
executed a special power of attorney in favor of Ken A. Sabayah: “You have the full power to
administer, to collect all my money; to withdraw my money in the bank; with full power to sue these
people who owe me; with the authority to hire a lawyer; and enter into a contract. Practically, you
are my alter ego.” And then Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals. So in accordance
with the authority, he hired a lawyer. In preparation of the complaint, it was stated that, “ Ken,
plaintiff vs. Lewee Yoda, defendant.”
ISSUE: Is the action properly filed?
HELD: NO. The real property in interest is the principal, the owner of the property.
Ken is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because
he is not the real party in interest. Ken is given the authority to sue, to manage, hire a
lawyer but not as the plaintiff because the real party in interest is Aiza. The complaint
should be name as “Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan!
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Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza, plaintiff vs. Leewee
Yoda, defendant” is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more
reason na nahalata ka that he is not the real party in interest. If Ken wants to include the his
name, it should be: “Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda,
defendant.”
Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case
because, the law does not say “every action must be prosecuted and defendant BY the real party
in interest.” Hindi naman sinabing “by” eh. So an attorney-in-fact can prosecute or defend a party
but in the name of the real party in interest. The real party in interest has submitted to the
jurisdiction of the court by filing the complaint through his lawyer.
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall
be included in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An agent acting in his own name
and for the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal.
(3a)
Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are not
the real party in interest. But Section 3 allows one who is not a real party in interest to sue and be sued in
behalf of somebody else. It is possible if you can qualify as a representative party.
Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of
the minor. A minor cannot use and be sued but she is the real party in interest. The law allows the parents to
come in and also be the plaintiff. The parents are what we the representative party. The law still requires for the
minor to be included in the case. The law states that “the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.”
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express trust, or
executor or administrator of the estate of a deceased person. When a person dies, what survives after him is his
estate which represent everything that is left behind. This later on will be given to his heirs. But for the
meantime under the law on succession, the executor or administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you should sue
the estate through the administrator or executor.
CHING vs. COURT OF APPEALS
181 SCRA 9
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem is, she
cannot locate John’s whereabouts. Also, Maya was not certain whether John is dead or alive. So, to
play it safe, what the Maya did was to file a case against the “defendant and/or the estate of
defendant.” Maya obtained a judgment against the ‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out that the John was already dead (tsk!
tsk!) but he has properties left behind. So, they started to take hold of their properties. Now, the
heirs of the John challenged the decision.
ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of the
defendant.”
HELD: The decision is void. “The decision of the lower court insofar as the deceased is
concerned, is void for lack of jurisdiction over his person. He was not, and he could not have been
validly served with summons. He had no more civil personality. His juridical personality, that is
fitness to be subject of legal relations, was lost through death (Arts. 37 and 42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of
B’s estate as co-defendant. It is a well-settled rule that an estate can sue or be sued
through an executor or administrator in his representative capacity.”
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves
things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent acts
in his own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT
when the contract involves things belonging to the principal. Under the exception, the principal
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has really to be included. The agent cannot file a case where the principal will lose his property
without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as
provided by law. (4a)
Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed money
alone and you want to sue the woman, still the husband should be included. Why? In the property relationship
between the husband and wife, they are governed by absolute community or conjugal partnership. Whether
you like it or not, the implication of the wife is also the implication of the husband because of the property
relationship.
In the same manner, if the wife wants to collect, even if the husband does not know anything about it, the
husband should still be named as party plaintiff, on the ground again that in the income that she can get
redounds to the benefit of the conjugal partnership.
And there were decided cases in the part where even if for example, a wife sues without the
husband, the defect is not fatal but merely format. The complaint should not be dismissed. All that
is to be done is to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and
under Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise
dispose of his or her exclusive property without the consent of the other spouse
and appear alone in court to litigate with regard to the same. (Family Code)
Sec 5. Minor or incompetent persons . - A minor or a person alleged to be
incompetent, may sue or be sued, with the assistance of his father, mother, guardian,
or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and
considered as representative party. Incompetent persons includes insane people or mentally retarded people.
They are supposed to be under the custody of other persons, the guardians. If no guardian, the court has to
appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or against any right to
relief in respect to or arising out of the same transaction or series of transactions is
alleged to exist, whether jointly, severally, or in the alternative, may, except as
otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder of
causes of action because when there is proper joinder of parties, necessarily there is also automatic joinder of
causes of action. But there could be joinder of causes of action without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be joined
together as defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against or against the parties joined in respect to
or arising out of the same transaction or series of transactions; and
2.) There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an accident.
All of them want to sue the operator of the carrier for damages arising out of the breach of contract of carriage.
Under the Law on Transportation, it possible for each passenger to file his own case because our causes of
action are different from each other. But can they be joined together in one complaint against the common
carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the
witnesses for both parties will be the same; the report will be the same; the defense of the
operator against one party will
be the same defense as against the other passenger. So, since
there is a common denominator on their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same
company, and all of them met an accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no common denominator – no
common question of fact. Therefore, they cannot be joined.
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PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings. They were
allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and Sheriff. Now, the
five of them want to sue the Inquirer for damages arising from libel. Is it possible for the five (5) people named
in the article to file only one complaint against the editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a
different issue. So there is a common question of act law in their cause of action.
PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury to other
passengers. So, there are three offended parties : the owner of the vehicle, the driver of the vehicle , and the
passenger. There are three(3) causes of action. Can they join in one complaint against Myra, the owner of the
car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is not
mandatory but optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties?
A: The following are the reasons:
1.)
2.)
3.)
4.)
to promote convenience in trial;
to prevent multiplicity of suits;
to expedite the termination of the litigation; and
to attain economy of procedure under which several demands arising out of the same
occurrence may be tried together thus avoiding the repetition of evidence relating to
facts common to the general demands.
Now, take note that when there is joinder of parties, there is automatically a joinder of causes of action.
That is why one of the conditions of limitations in joinder of causes of action is you must observe the rule on
joinder of parties. If joinder of parties is improper under Rule 3, the joinder of causes of action is also improper
under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF
ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
Paano yun?
EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three (3) loans
from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!
Q: Now, can I join them in one complaint?
A: Yes.
Q: Is there joinder of causes of action?
A: Yes.
Q: Is there joinder of parties?
A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of parties because there is only one
plaintiff and one defendant. But if you join parties in Rule 3, automatically, there is joinder of
causes of action. This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called indispensable parties and necessary
parties. (Section 7 and Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties . Parties in interest without
whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not indispensable but
who ought to be joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the claim subject of
the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they change
the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940 Rules. Under the
old rules, the parties were either indispensable or necessary. Then under the 1964 Rule, it was changed from
‘necessary’ to ‘proper.’ Now, under the new rule, back to its old name: ‘necessary party.’
Q: Distinguish indispensable from necessary party.
A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a sine qua
non of the exercise of judicial power, for without him, no final determination can be had of the action. (Borlasa
vs. Polistico, 47 Phil. 345)
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A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole controversy
and avoid multiplicity of suits, but if for some reason or another he cannot be joined, the court may proceed
without him and the judgment shall not prejudice his rights. (Ibid.)
Q: Give examples of indispensable party.
A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De
Lara vs. De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made
parties. (Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the person
who claims to be the owner of the land is the indispensable party defendant and not the one in
possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)
Q: Give examples of necessary party.
A: In an action for collection of debt instituted by the creditor against the surety, the principal
debtor is merely a necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt
instituted by the creditor against the debtor, the guarantor or surety is merely a necessary
property. (Ibid.) In an action for foreclosure of a real estate mortgage instituted by the first
mortgagee, the second mortgagee is merely a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the
creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal
debtor cannot pay like when the debtor is insolvent. On the other hand, a surety is principally
liable to the creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money from the
creditor, then another acted as the surety. Now, suppose the debtor will not pay, the creditor files now a case
against the surety without the debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he do next?
He will now sue the principal debtor for reimbursement. Meaning, there is still a future case. Thus, there could
be no complete relief between those who are parties. So, the debtor is a necessary party, and not
indispensable. But it is advisable to join the debtor in one case, para pag nag-claim ang creditor from the
surety, the latter can automatically claim from the debtor. Pang-one time ba!
PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the guarantor. The
Doña Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent, the
creditor will now file another case against the guarantor.
REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor can
collect the whole obligation from any of the debtors without prejudice to the right of the latter for
reimbursement of his share in the obligation from his co-debtors. On the other hand, in joint obligation, the
creditor can only get from a debtor the latter’s share in the whole obligation. Meaning, the creditor cannot
compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo.
PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor.
Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint obligation.
Cathy is only necessary insofar as Manuel’s share is concern. But Manuel is indispensable party insofar as his
share is concern.
Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.
PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña Eugenia is the
creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of solidary
obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely necessary party.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading
in which a claim is asserted a necessary party is not joined, the pleader shall set
forth his name, if known, and shall state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause,
shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)
If you do not implead a necessary party, you must give an explanation why did you not implead
him. The law requires as much as possible that all parties be impleaded to avoid multiplicity of suits. EXAMPLE:
Tato “The Hunk” files a case against Andre “The Hippie”, a surety, without including Sheriff “The Punk” as the
debtor. In the complaint of Tato, he shall explain why he is not including Sheriff.
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Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the
court from proceeding with the action. The judgment rendered shall be without prejudice to the
rights of such necessary party.
However, if the court finds no valid reason for not impleading a party, the court may order the
inclusion of the necessary party under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable cause shall be deemed a waiver of
the claim against such (necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court, and
later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore because he
(Tato) failed to comply with the order of inclusion without justifiable cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be
stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover property
which they believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a case.” But sabi ni
sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of them will
suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling
plaintiff, name him as defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder
of parties is ground for dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or on its own initiative at any stage of the
action and on such terms as are just. Any claim against a misjoined party may be
severed and proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for dismissal of an
action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss because at any stage of the
case, the court can order a misjoined party to be removed or a party not joined to be included.
Q: Do you know what ‘MISJOINDER of parties’ mean?
A: It means that two or more parties should not be joined but they are improperly joined. A
good example is, if there is no common question of fact or law. Meaning, you do not have any
business to be here but you are joined or misjoined. That is what we call misjoinder of parties. It is
also known as “spurious class suit.”
Well, ‘NON- JOINDER’ is different. A party who should be joined was not joined such as a
necessary party.
Q: What happens if a party is misjoined or if there is a non-joinder, should the case be dismissed?
A: Not, that is not a ground for dismissal.
Q: So what is the remedy then?
A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of
the party who should be joined. And that is not a defect which should cause the dismissal of the
case because the can always issue an order ordering the removal of a misjoined party or the
inclusion of joinder of a party who should be included.
Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an action? Like for
example, I have a case against somebody in the class, the trouble is in the meantime, I cannot identify who
among you who did the wrong to me. So I will file a case against all of you. Anyway later on, I can dump you
kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was joined in good
faith believing that he was a defendant but actually it turned out to be wrong. So, you have no right to sue
anybody just like that. That is not an excuse for suing any party left and right. In the case of
REPUBLIC vs. SANDIGANBAYAN
173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 “does not comprehend whimsical and irrational dropping or adding
of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder
and misjoinder of parties. No one is free to join anybody in a complaint in court only to
drop him unceremoniously later at the pleasure of the plaintiff. The rule presupposes
that the original inclusion had been made in the honest conviction that it was proper
and the subsequent dropping is requested because it turned out that such inclusion was
a mistake.”
CLASS SUIT
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SEC. 12. Class suit. When the subject matter of the controversy is one of common
or general interest to many persons so numerous that it is impracticable to join all as
parties, a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned may sue or defend
for the benefit of all. Any party in interest shall have the right to intervene to protect
his individual interest. (12a)
As a GENERAL RULE, if there are several real parties in interest, they shall be included in the
case whether indispensable or necessary. Example: There are 30 of us. The general rule is that all
parties in interest, indispensable or necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the rest.
That is also known as the “doctrine of virtual representation.” The concept of a class suit was first
enunciated in the old case of
BORLAZA vs. POLISTICO
47 Phil. 345
FACTS: This case has something to do with raffle. A group of people decided to form an
association which they called “Turnuhang Polistico.” You become a member of this association by
contributing a certain sum of money. And then every Sunday after mass, half of the collection will
go to the treasurer of the association. The other half will be raffled off. This has been going on for
months and years. The time came when the funds of the association became very big. Some of the
members, in behalf of all the members, decided to file a case against the officers to render an
accounting of all the amounts. The real parties in interest would be the members.
ISSUE: Is the suit filed by some members in behalf of some members proper?
HELD: YES, because if We will require all the members to appear, it will be quite
impossible. Therefore, some members must be made to sue but only in behalf of all the
members who are not around and it is impracticable to bring them all to the court. A
number of them may sue for the benefit of all.
Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?
A: Under Section 12, the following are the conditions of a valid class suit:
1. The subject matter of the controversy is one of common or general interest to many
persons (such as the funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.
In which case a number of them which the court finds to be sufficient and numerous and representative as
to fully protect the interests of all concerned may sue or defend for the benefit of all. Example is a taxpayer’s
suit – filed in behalf of all the taxpayers in the Philippines. And there is no specific number of persons that is
provided by law.
Now, we will go to some interesting cases on class suit decided by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.
72 SCRA 347 [1976]
FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been the subject
matter of litigation for the past years – 3 or 4 decades. It is a big track of land in Quezon City
occupied by so many people who want to acquire it. They are questioning the title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta is
very big, they subdivided it – kanya-kanyang lote. Then a case was filed by Sulo ng bayan
Association against Araneta to annul the title of the latter.
ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the action must be
prosecuted and defended in the name of the real parties in interest.” The members occupying the
land are the plaintiffs. The association is not the one occupying the lot. So, the first question is, who
should be the plaintiff? It should be the members.
ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class suit:
In a class suit, the subject matter is of common interest to all. Meaning, lahat tayo is
interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron ka
bang interest diyan? “Meron.” Do you have an interest in
that
(another
lot)
portion? “Wala.” If that is so, then the subject matte is not of common interest. The
interest of one occupant is only on the lot he occupies. Meaning, “My neighbor does not
have an interest on the lot I occupied.”
What should be done is that all of them to sue together to cover the entire property, for each
one has a lot. So, in that case, Section 6 should be applied – permissive joinder of parties because
there is a common question of fact. This is more of permissive joinder of Parties rather than a
class suit. That’s why you can confuse Section 6 with Section 12. But the permissive joinder of parties
kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they
can join together. Unlike in a class suit, the subject matter is of interest to everybody and we
cannot all be joined because we are so numerous.
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BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES
May 19, 1989
RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was an
attempt to file a class suit in behalf of everyone who were drowned including those who were not
identified.
HELD: That cannot be. The survivors have no interest in the death of other
passengers. The interest in this case is individual. What would have been proper is
permissive joinder of parties because of common question of tact or law, but not class
suit.
OPOSA vs. FACTORAN
224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly represented by their parents.
They filed a case against then DENR Secretary Factoran. The prayer in the case is to order the DENR
to cancel all existing Timber License Agreements (TLA’s), to cease and desist from proceeding,
accepting, processing, renewing all accruing new TLA’s. So, in effect, it prays for a total log ban in
the country to preserve the remaining forest all over the Philippines.
These young boys sue with their parents. They are suing in their behalf, in behalf of the other
citizens who are of their age because they stand to suffer if the environment will be deteriorated.
They say that they are entitled to the full benefit, use and enjoyment of the natural resources of our
country’s rich tropical rainforests. They say, the case was tiled for themselves and others for the
preservation of our rainforest and we are so numerous that it is impracticable to bring all plaintiffs
to court. They say that they represent their generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a special and novel element.
The personality of the minors to sue for the succeeding generations is based on the concept of
inter-generational responsibility insofar as a balanced and healthful ecology is concerned. Every
generation has a responsibility to preserve the ecology. The minors’ right to a sound environment
constitute at the same time the performance of the obligation to ensure the protection of the rights
or the generations to come.
Q: In case of doubt, should a class suit be allowed?
A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is
an exception to the general rule that all parties should be included.
CADALIN vs. POEA ADMINISTRATOR
238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be allowed with caution because the
fact that you represent others is only a fiction of law. For all you know, those others may not want to
be represented. So okey lang kung manalo ang kaso. Eh kung matalo ang kaso? All others start
blaming you. That is why the court is extra-cautious in allowing class suits because they are the
exceptions to the condition sine qua non requiring joinder of all indispensable parties.
In an improperly instituted class suit, there would be no problem it the decision secured is
favorable to the plaintiffs. The problem arises where the decision is adverse to them. In which case,
the parties who are impleaded through their self-appointed representatives would surely plead
denial of due process.
Q: Distinguish a representative suit from a class suit.
A: In the case of
LIANA’S SUPERMARKET vs. NLRC
257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of hundreds of employees. Is
this a representative suit or a class suit?
HELD: “What makes the situation a proper case for a class suit is the circumstance
that there is only one right or cause of action pertaining or belonging in common to
many persons, not separately or severally to distinct individuals. The object of the suit
is to obtain relief for or against numerous persons as a group or as an integral entity,
and not as separate, distinct individuals whose rights or liabilities are separate from and
independent of those affecting the others.”
In a representative suit, there are different causes of action pertaining different persons.
“In the present case, there are multiple rights or causes of action pertaining separately to
several, distinct employees who are members of respondent Union. Therefore, the applicable rule is
that provided in Rule 3 on Representative Parties. Nonetheless, as provided for in the Labor Code, a
legitimate labor organization has the right to sue and be sued in its registered name. This
authorizes a union to file a representative suit for the benefit of its members in the interest of
avoiding an otherwise cumbersome procedure of joining all union members in the complaint, even if
they number by the hundreds.” For convenience, the Labor Code allows a union to file a
representative suit.
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It is important to note the following:
1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit
in behalf of the entire corporation because intra-corporate remedy is useless.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may join any or all of them as defendants
in the alternative, although a right to relief against one may be inconsistent with a
right of relief against the other. (13a)
Alternative defendants is also related to alternative causes of action – even if your right against one is
inconsistent with your right to relief against the other party, you may file a suit against the alternative
defendant. (c.f. Rule 2, Section 5 – Joinder of Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa
aquiliana or culpa contractual. Is that not inconsistent? The law says, “although a right to relief against one may
be inconsistent with a right against the other.” In other words, even if the two causes of action is inconsistent
with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is, who
among the two will be held liable.
Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason why the
grounds for “alternative plaintiffs” should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a
certain defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule on
permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his agent may
join as plaintiffs in the alternative against a defendant. If the agency is proved, the relief is
awarded to the principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant . Whenever the identity or name of a
defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other
designation as the case may require; when his identity or true name is discovered, the pleading
must be amended accord. (14)
Q: Can you sue somebody who is unknown?
A: YES, under Section 14.
BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say a Toyota
Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are the lawyer of the
Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my
complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with
plate number so and so.” And later if you discover the true identity of the owner, we can amend
the complaint to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. – The complaint or information must state the
name and surname of the accused or any appellation or nickname by which he has been or is
known. If his name cannot be ascertained, he must be described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other
manner to the court, such true name shall be inserted in the complaint or information and
record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. 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.
In the answer of such defendant, the names and addresses of the persons composing said
entity must all be revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.
Entity without juridical personality as defendant. Under the old law, this was known as suing two or more
persons involved in a business under a common name. When two or more persons transact in a business under
a common name, they may be sued under their common name.
Q: Who are really the defendants here? A: The persons involved.
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Now, it is worded in this manner: “When two or more persons not organized as an entity with juridical
personality,” instead of a ‘common name.’ You cannot sue the entity because it has no juridical personality. But
you do not also know the members of that entity, so the law allows you to file a case against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must file under their
names as they are really the real parties in interest. When the lawyer answers the complaint, he is duty-bound
to provide the names of all the defendants.
Q: How do you summon this kind of defendant?
A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality. When persons
associated in an entity without juridical personality are sued under the name by which they are
generally or commonly known, service may be effected upon all the defendants by serving upon
any one of them, or upon the person in charge of the office or place of business maintained in
such name. But such service shall not bind individually any person whose connection with the
entity has, upon due notice, been severed before the action was brought. (9a)
Correlate this with Rule 36, Section 6:
Sec. 6. Judgment against entity without juridical personality. When judgment is
rendered against two or more persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in interest.
EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)
1. Class suit (Section 12, Rule 3);
2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action
dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to
inform the court within thirty (30) days after such death of the fact thereof, and to
give the name and address of his legal representative or representatives. Failure of
counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if
the one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be recovered as
costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not thereby extinguished
(this is what they called an action which survives as we will explain later) and there are certain actions where
if a party dies, the claim is automatically extinguished. Meaning, the death of a party causes death of the
action. But these are very few. Majority of cases when the party dies, the case or the cause of action continues.
It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of
the party thereof. He must inform the court and give the name and address of his legal
representative/s (e.g. administrator of executor of the estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But
procedurally, you must tell the court and you must give the name of the legal representative. The
latter may re-hire the lawyer but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered substituted. And there
is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall be a ground
for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to disciplinary action.
So the provision continues, “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.
So, other than the legal representative, before anything else, the representative refers to the
executor or administrator, and the other alternative will be the heirs, such as the surviving
children, wife or spouse.
Although there was a case decided by the SC way back in 1986 in the case of
57
LAWAS vs. COURT OF APPEALS
146 SCRA 173
HELD: “The priority of substitution would be the executor or administrator not the
heirs. The heirs would only be allowed to be substituted if there is an (1) unreasonable
delay in the appointment of administrator or executor, or (2) when the heirs resort to
extrajudicial partition. But outside of those two reason, the law always gives priority to
the administrator or executor.”
Under the rule, priority is given the legal representative of the deceased. That is, the executor
or the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang
heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given to the administrator or executor. It is only when there is unreasonable delay in the appointment, or when the heirs resort to
extrajudicial partition because there is no more administrator or executor in extrajudicial settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is going on. What is the
procedure? There should be substitution. But there was no substitution in the case for ten years,
until it was decided. The court was not informed of the death of the defendant. Until finally, there
was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of
judgment, is the judgment jurisdictionally detective? Because here, the case continued eh, in which
somebody is already dead.
HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial court
and participated in the proceedings. Therein, they presented evidence in defense of the deceased
defendant. It is undeniably evident that the heirs themselves sought their day in court and
exercised their right to due process.”
In other words, when there was a defect the heirs however cannot used that because they themselves
appeared and continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death of the
defendant in a money claim – action to collect a sum of money.
Sec. 20. Action on contractual money claims. When the action is for recovery of
money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time of
such death, it shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the plaintiff therein shall
be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
The best example here is an action to collect an unpaid loan. And while the case is pending the defendant
died. What will happen to the case? The law says: If the defendant dies before the entry of the final
judgment in the court at the time of death, it shall not be dismissed but it shall instead be allowed
to continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be
dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased under the Rules on
Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na iyon when the defendant dies.
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue
until entry of final judgment. That is a radical change of procedure! So case will not be dismissed.
It shall be allowed to continue until entry of final judgement. Meaning, until it becomes final and
executory.
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you move
to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein
shall be enforced in the manner specially provided in these Rules for prosecuting claims against
the estate of a deceased person.”
Q: And what is that procedure?
A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there
will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies, what
will happen to the case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or an ACTION
WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE
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An action which does not survive is an action which is abated upon the death of a party. The
case cannot go on once a party dies. And normally, that refers to actions which are purely
personal in character like an action for annulment of marriages, an action for declaration of the
nullity of marriage or, an action for legal separation, or an action for support. These are the
cases arising from the Family Code.
Example: The husband files a case against the wife for annulment of marriage or legal
separation. One of them dies. Wala nang substitution, TAPOS NA! When one of the parties dies,
the marriage is dissolved. There is nothing to annul because the marriage is already dissolved.
So, these are the actions which are purely personal .
Q: So, what is the effect of the death of the party in actions which does not
survived?
A: The case is dismissed!
However, these cases are very few. Majority of the cases are damage suit, recovery of possession, recovery
of land, recovery of unpaid loans, etc. So, these are what you call actions which survive. Meaning , if a party
dies, you cannot say that the case is terminated upon the death of the party. So, ano ang mga kaso na
iyan?
2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a
contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant is the
one who died, when did he die?
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives will
proceed. So, there is substitution.
2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of
final judgment or after entry? This is where Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of
Rule 3. Meaning, the case shall not be dismissed but shall be allowed to continue until
entry of final judgment. And the favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for prosecuting
claims against the estate of a deceased person, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but before
execution (after the judgment became final but before there could be levy or execution)
you cannot move to execute. Again, you apply Section 5 of Rule 86 which is the
governing rule – you file your judgment as a claim against the estate of the deceased
defendant. [Section 5, Rule 86 - Please refer to your codals.] The purpose there is, so
that the creditor will share with the other creditors pro-rata in the distribution of the
estate.
2a2c) If the defendant died after levy or execution but before the auction sale –
meaning, the property was already levied by the sheriff bago pa namatay – we will now
apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the death of
party, execution may issue or be enforced in the following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after execution is actually
levied upon any of his property, the same may be sold for the satisfaction of the
judgment obligation, and the officer making the sale shall account to the
corresponding executor or administrator for any surplus in his hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is
an excess, the excess shall be delivered to the administrator of executor.
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:
EXAMPLE: an action for recovery of property, real or personal like replevin,
forcible entry, unlawful detainer, action publiciana, action reinvidicatoria, or
action for damages, (damages that is not the same for transaction of money
because damages arising from culpa aquiliana is one not arising from contract.)
If a party dies in an action which survives which is a non-contractual money
claim, obviously, there is substitution of parties. So, what are these non-contractual
money claims which survive? These are those mentioned in Section 7 of Rule 86 and
Section 1 of Rule 87. That is in the study of Special Proceedings on settlement of the
estate of a deceased person.
So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE OUTLINE
HEREIN ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies (in
actions involving money claims) the case shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased?
Now, to my mind, you correlate this with Section 16 --- there should still be substitution.
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But assuming, there was no substitution and the heirs fought in the case; there is waiver
because the defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what
Section 20 emphasized is that, the action shall not be dismissed but shall continue – to emphasize that it is now
different compared with the prior RULE. But obviously, there will always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When a public
officer is a party in an action in his official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor
takes office or such time as may be granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial need for continuing or maintaining
it and that the successor adopts or continues or threatens to adopt or continue the
action of his predecessor. Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he (1)
dies; (2) resigns; or (3) cease to hold office, there will be a succession.
Q: What will happen to the case?
A: The following:
1.) If the successor intends to continue with the policy.
EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a hazard. If
Mayor Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor Angeles who is
now the mayor says that he will continue with the demolition, he will be substituted
and he is given 30 days to comment.
2.) If the successor does not adopt the policy, the case will be dismissed.
Sec. 18. Incompetency or incapacity. If a party becomes incompetent or
incapacitated, the court, upon motion with notice, may allow the action to be
continued by or against the incompetent or incapacitated person assisted by his
legal guardian or guardian ad litem. (19a)
EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes insane. (tsk!
tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem Thad.
This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already insane
before the case is filed. [inborn na yan eh!]
Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be
continued by or against the original party, unless the court upon motion directs the
person to whom the interest is transferred to be substituted in the action or joined
with the original party. (20)
EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending, Leweh
sold the land to Erec. Erec now assumes the risk and takes the property subject to the outcome of the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.
In all 3 cases, Erec will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or
defense as an indigent if the court, upon an ex parte application and hearing, is
satisfied that the party is one who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and other
lawful fees, and of transcripts of stenographic notes which the court may order to be
furnished him. The amount of the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any judgment rendered in the case
favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after hearing
that the party declared as an indigent is in fact a person with sufficient income or
property, the proper docket and other lawful fees shall be assessed and collected by
the clerk of court. If payment is not made within the time fixed by the court,
execution shall issue for the payment thereof, without prejudice to such other
sanctions as the court may impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no person
shall be denied access to courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex-party
application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees – file
now, pay later) – the amount shall be a lien on any favorable judgment.
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The third paragraph is new. The other party may contest the claim of the indigent if he is really an indigent
or not.
Sec. 22. Notice to the Solicitor General. In any action involving the validity of any
treaty, law, ordinance, executive order, presidential decree, rules or regulations, the
court, in its discretion, may require the appearance of the Solicitor General who may
be heard in person or through a representative duly designated by him. (23a)
EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for declaration of
nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of the Family Code is
unconstitutional. So the court will rule on the validity of the law in which case, the Solicitor General has to be
involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is to defend
all the official acts of the Government.
Rule 4
VENUE OF ACTIONS
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Q: Define venue.
A: VENUE is the place where the action must be instituted and tried. (Ballentine’s Law Dict., 2nd
Ed., p. 1132)
EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you file the action
in other places, that is improper or wrong venue. In criminal cases, that is called territorial jurisdiction – the
place where the crime was committed. But in civil cases, venue is not the same with jurisdiction. We do not call
it territorial jurisdiction. We call it venue.
This is where it is important to determine whether the action is real or personal for the purpose of venue.
The venue of real action is stated in Section 1 and the venue for personal action is stated in section 2.
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. Actions affecting title to or possession of real
property, or interest therein, shall be commenced and tried in the proper court which
has jurisdiction over the area wherein the real property involved, or a portion
thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property involved, or
a portion thereof, is situated. (1[a], 2[a]a)
While it is true that the rule on venue is new however, the rule on venue even before 1997 as earlier as
August 1, 1995, Rule 4 of the 1964 Rules has already been amended by the administrative Circular No. 13 -95,
but now it incorporated under the Rules of 1997.
Now, when the action is real, we distinguish whether it is forcible entry and unlawful detainer
or action publiciana or action reinvidicatoria. If it is accion publiciana or reinvidicatoria, the proper
venue is the one which has jurisdiction over the area wherein the real property involved or a
portion thereof is situated. Of course, the RTC is divided into areas. every branch has its own
designated area of responsibility.
Q: Why does the law say “tried in the proper court?”
A: It is because proper court will now be the MTC or the RTC, depending on the assessed value of the
property. If the assessed value is P20,000 or less, MTC yan. If it is over P20,000, it should be in the RTC.
Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply – that is, MTC – it
is in the municipality or city wherein the real property involved or a portion thereof is situated. So,
kung saan iyong real property, doon din ang venue. Now, it is possible that for a property be in the boundary of
two towns. Example: one half is part of Davao City and the other half is in the municipality of
Panabo. So, if you would like to file a case for forcible entry against somebody, you have two
choices. You can file it in the MTC of Panabo or in the MTC of Davao City.
Now, let’s go to personal actions.
VENUE OF PERSONAL ACTIONS
Sec. 2. Venue of personal actions. All other actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides, or where the defendant
or any of the principal defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff. (2[b]a)
Iyan ang tinatawag natin na TRANSITORY ACTION. The venue will now depend on the residence of the
parties. In the civil action, the venue is
(1) the place where the plaintiff resides or
(2) where the defendant resides, at the election of the plaintiff. So, puwede kang pumili sa
dalawa.
Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4 different cities or
municipalities. So ang choice mo ng venue ay walo (8) becuae the law says, “where the plaintiff or any of the
principal plaintiffs or where the defendant or any of the principal defendants reside…”
So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence of each one could
be the proper venue.
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as nominal
defendant and nominal plaintiff – iyun bang formal lang.
EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of to annul a levy,
normally it pleads the sheriff as party. But the sheriff is not the principal party but is only a NOMINAL PARTY. So,
the residence of the sheriff is not considered the sheriff being a nominal party only.
So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of venue. That is
the original concept of forum shopping. I will cite the original case which traced the history of forum-shopping
na kung saan ako convenient, doon sko mag-file. That is the original concept – which is legal and legitimate.
The trouble is, the concept of forum shopping degenerated into a malpractice , where a lawyer, mag-file ng
case, sabay-sabay. Ayan! That is why there is a SC case which I will later discuss where Justice Panganiban cited
the history of forum shopping. (Dean is referring to the case of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA
(252 SCRA 259), January 24, 1996)
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Forum shopping is legitimate and valid but the trouble is, the practice acquired another unsavory meaning,
where a lawyer will file simultaneous cases. Kaya nga nasira – from a legitimate practice to an act of
malpractice. That is the history of forum shopping.
However, there are instances when it is easy to distinguish whether the action is real or personal and there
are also instances when it is difficult.
EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of real property.
Generally, an action for annulment or rescission is a personal action. But suppose , I will file a complaint to
annul or rescind a contract of a deed of sale over a parcel of land. I’m from Davao and you’re from Davao. But I
would like to annul the sale of a land which I made to you one year ago which land is situated in Digos and the
purpose of my action is to recover the ownership of that land. Then, that is a real action because the
primary object of the suit is to recover the ownership of real property, di ba? It seems to be
personal but in reality it is a real action. So the venue is governed by Section 2.
But there are also actions na King tingnan mo parang real but in reality, they are personal actions. Like
what happened in the case of
LA TONDEÑA DISTILLERS INC vs. PONFERRADA
264 SCRA 540 [1996]
FACTS: Judee entered into a contract where she committed herself to sell her land to Maying.
And Judee even placed a lis pendens on the property. But later Judee said, “Gua bo ai!” (chinese for
‘ayoko na!’) Nag-back out ba! So Maying will file a case against Judee for specific performance to
compel her to sign the deed of sale.
Ang question diyan, ano ba ito? real or personal action? Because if it is real action, the
complaint should be filed in the place where the land is situated. If the action is personal, it can be
filed in Davao City where both of them are residents.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning my ownership. Here,
the plaintiff recognizes that the defendant is still the owner. Kaya nga he is still filing
the case to compel him to sell.
Thus, it should be filed in the residence of the parties. “The complaint is one for specific
performance with damages. Private respondents do not claim ownership of the lot but in
fact recognized title of defendants by annotating a notice of lis pendens. In one case, a
similar complaint for specific performance with damages involving real property, was held to be a
personal action, which may be filed in the proper court where the party resides. Not being an action
involving title to or ownership of real property, venue, in this case, was not improperly laid before
the RTC of Bacolod City.” (Adamos vs. Tuazon 25 SCRA 30 [1968])
So it is not really an action affecting title or ownership because you are still recognizing the
title of the owner of the property. It is different when I’m no longer recognizing it, like recovery or
reinvidicatoria. These are gray areas, or sometimes very hard to distinguish whether the action is real or
personal.
Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are sought in an
action, and the reliefs prayed for are real and personal, how is venue determined?
A: Where several or alternative reliefs are prayed for in the complaint, the nature of the action
a s real or personal is determined by the primary object of the suit or by the nature of the principal
claim. Thus, where the purpose is to nullify the title to real property, the venue of the action is in
the province where the property lies, notwithstanding the alternative relief sought, recovery of
damages, which is predicated upon a declaration of nullity of the title. (Navarro vs. Lucero, 100 Phil.
146)
Where a lessee seeks to establish his right to the hacienda, which was subsequently sold, for the purpose of
gathering the crops thereon, it is unnecessary to decide whether the crops are real or personal property,
because the principal claim is recovery of possession of land so that he may gather the fruits thereof. (LTC vs.
Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
We will now go the issue of residence. Where is the residence of the parties? Because residence in law
could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR PHYSICAL RESIDENCE.
Alam mo, iyong legal domicile, you may not be there but there is intention to go back there someday.
Alright, with the exception of only one case, the word ‘residence’ and ‘venue’ has been uniformly interpreted by
the SC to mean ACTUAL or PHYSICAL RESIDENCE not legal domicile. Alright, there are so many case
already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189); HERNANDEZ vs. RURAL BANK OF THE PHIL (81
SCRA 75); RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54).
Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE
100 Phil 221
FACTS: An American who resides in San Francisco who came to the Philippines rented an
apartment in Manila to sue his wife who is a Filipina. The wife is from Mindanao. And then the
American husband filed the case in Manila because residente man daw siya in Manila – because he
rented daw an apartment in Manila. Now, if you follow the rule, tama man ang husband ba.
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HELD: You are not a resident of Manila. Your residence is in San Francisco – that is your domicile.
So that is to compel the American to file the case in the residence of the wife rather than the wife
going to Manila.
So the case of CORRE is the only exception where the SC said, “residence means domicile.” All the rest,
physical! In the case of CORRE, maybe the SC there was just trying to help the Filipina. If we will interpret the
rule on venue as physical, it is the Filipina who will be inconvenienced. If we say legal residence is the venue, it
is the American husband who would be forced to go to the Mindanao to file. And we should favor our own
kababayan. Yan siguro ang nangyari because that was the only exception eh.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is the residence of a corporation? Under the
corporation law, the residence of a corporation is the place where its head or main office is situated – yung
head office ba which is usually stated in the articles of incorporation.
Now, let’s go to some interesting cases on this issue:
CLAVECILLA RADIO SYSTEM vs. ANTILLON
19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned the venue because its
head office is in Manila. The plaintiff argued that it can be sued because it has a branch in Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it has an office or branch?
HELD: NO. Any person, whether natural or juridical, can only have one residence.
Therefore, a corporation cannot be allowed to file personal actions in a place other than
its principal place of business unless such a place is also the residence of a co-plaintiff
or defendant.
The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO SUPPLY CO. vs. COURT
OF APPEALS (223 SCRA 670)
Because the law said “where the plaintiff or any of the principal plaintiffs..” So if the corporation is
suing with someone from Davao, even if my head office is in Manila, I can file because of the residence of my
co-plaintiff or the residence of the defendant. But outside of that, a corporation cannot sue outside of its head
office because its residence is there. That is the case of YOUNG AUTO SUPPLY.
“OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE MAY BE FOUND”
Suppose the defendnt is not residing here in the Philippines but is just on vacation and you want to sue him.
What is now the point of reference?
Did you notice the phrase “or in the case of a non-resident defendants where he may be found.”
Now what does that mean? It means to say that the defendant is not actually residing in the Philippines but he
is temporarily around because he is found in the Philippines. Example is a balikbayan who is still on vacation.
PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this Christmas for a
vacation. When he landed at the Manila Domestic Airport and you are his friend and the first thing he requested
you is, “wala pa akong Philippine peso, puro pa dollars. So pahiramin mo muna ako. I will pay you in one week’s
time once I have my dollars exchanged to pesos.” How much do you want? He borrowed from you P15,000.00.
One week later, still he has not paid you and obviously it seems he will not pay you. So you decided to sue him
while he is around to collect the case advance of the P15,000 that you gave him. So, where is the venue of the
action?
A: The law says, generally where the plaintiff resides or where the defendant resides. The trouble is, the
defendant has no residence here because he is already residing abroad. But he is temporarily here in the
Philippines.
You can sue him where he may be found. If he decides to stay in Cebu, that is where the proper
venue rather his permanent residence. So where he may be found is the alternative venue. The
phrase “where he may be found” means where he may be found here in the Philippines for a nonresident defendant but temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your neighbor
borrowed money from you and the nest thing you heard is that he left the country. He has already migrated to
the states. Of course you know his address there. Can you sue him in the Philippine court, a defendant who is
no loner residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the Philippines and is not found here in the first place?
A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise, he
will not be bound by the decision.
But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I told you that
the res or the thing in dispute is important because sometimes it takes the place of jurisdiction over the person
of the defendant. So even if the Philippine court cannot acquire jurisdiction over the person of the
defendant but the subject of the controversy (res) is in the Philippines, then the non-resident
defendant can also be sued in the Philippines. The court can now acquire jurisdiction over the res,
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subject and since the res is here, the judgment can be enforced. It is not a useless judgement
anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to recover ownership
over the land here in the Philippines, yaan!
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is here
and if he loses the case the judgment can be enforced – transfer the property to you. So it is not a
useless judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not
reside and is not found in the Philippines, and the action affects the
1.
2.
personal status of the plaintiff, or
any property of said defendant located in the Philippines,
the action may be commenced and tried in the court of the place where the plaintiff resides, or where the
property or any portion thereof is situated or found, (2[c]a)
Q: What is the difference between the non-resident defendant in Section 2 and the non-resident defendant
in Section 3?
A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section 3, he does not
reside and is not found in the Philippines. So, physically, he is not around.
Q: What actions can be filed against a non-resident defendant who is not even found here in the
Philippines?
A: There are two (2):
1.) The action that affects the personal status of the plaintiff; or
2.) The action affects the property or any portion thereof of said defendants is located here
in the Philippines.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father left the Philippines
for good. The son wants to file a case against the father for compulsory recognition, at least to improve his
status.
Q: Can the child file a case for compulsory acknowledgment here in the Philippines against the father for
compulsory acknowledgment?
A: YES because the action involves the person status of the plaintiff. The res is the status of
the plaintiff who happens to be in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS
LOCATED HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of land located here in the Philippines and I
want to recover the ownership of the piece of land.
Q: What is the res?
A: The res is the land which is situated here in the Philippines. Therefore I can sue that
defendant even if he is there because the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no longer residing here and is no longer
found here, the action must be:
1.) action in rem; or
2.) at least quasi-in rem, because if the action is for compulsory recognition, that is actually an
action in rem. If the suit in involves a property here in the Philippines, at least that is an action
quasi-in rem.
But if the action is purely in personam, then there is no way by which you can sue him. Example
is an action to collect an unpaid loan.
Q: Where is now the proper venue of the action against the non-residents?
A: The law says where the plaintiff resides – action which affects the personal status of defendants, where
the property of the defendant located here in the Philippines
Sec. 4. When rule not applicable. - this rule shall not apply a)In those cases where a specific rule or law provides otherwise; or
b)Where the parties have validly agreed in writing before the filing of the action
on the exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE;
So, when there is a special rule or law on venue which applies only to certain types of cases, then that rule
will apply rather than Rule 4.
Q: What cases which provides for venue of the action which may be different from what Rule 4 says?
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A: The following:
1.) A civil action arising from LIBEL under Article 360 of the Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered under the RPC as one of the
independent civil actions. The criminal action for libel shall be filed simultaneously or
separately with the RTC of the:
a.) province or city where the libelous article is printed and first published; or
b.) where any of the offended parties actually resides at the time of the commission of
the offense.
If one of the offended party is a public officer, whose office is in the City of Manila at the time of
the commission of the offense, the action shall be filed (a) in the RTC of Manila, or (b) in the
RTC of the province where he held office at the time of the commission of the offense.
2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place
of trial to avoid a miscarriage of justice as what happened in the case of Mayor Sanchez.
So these are the examples on the special rules. Alright…
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE
THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF.
So, it is possible that A and B will enter into contract providing for suits involving the violation
of the contract, the venue shall be in this particular place. Take note that the stipulation must be in
writing and it is there even before the filing of the action. Alright…
EXAMPLE: Contracts of banks and other financing companies. Sometimes it says there that in case of suits
arising out of these contract, the action shall be filed in the City of Makati or Manila which is neither the
residence of the parties.
Q: Now, can we agree to file a case other that were the parties reside?
A: YES because the law says, we can agree on a place where the action will be filed provided it
is in writing and it is stipulated even before the filing of the action.
POLYTRADE CORP. vs. BLANCO
30 SCRA 187
FACTS: Charles and Joshua are both residing here in Davao City. Joshua borrowed money from
Charles, and Joshua executed a promissory note in favor of Charles which says, “I promise to pay
Charles the sum of P200,000 one year from today. In case of a suit arising from this promissory
note, the parties agree to sue and be sued in the City of Manila.”
When the note matured, Joshua did not pay. Charles filed a case to collect the unpaid loan here
in Davao City. Charles challenged the venue. According to Charles, the venue is correct because
both of us are residing here in Davao City and under Rule 4, the venue is where I reside or you
reside, at my option. Both of us are residing here so I sued you here.
Defendant Joshua says, no since there is a stipulation we both agreed upon that in cases of
litigation, the parties agree to sue and be sued in the City of Manila. So Manila is the correct venue.
ISSUE: Who is correct in this case? A the plaintiff or B the defendant?
HELD: Plaintiff is correct notwithstanding the stipulation. Why? When the parties
stipulated on the venue of the civil action, other that those found in the Rule of Court,
the stipulated venue is considered merely as an ADDITIONAL venue in addition to where
the parties reside. Unless the stipulation contains RESTRICTIVE words which shows the
intention of the parties to limit the place stipulated as the exclusive venue.
In other words, the parties agree to sue and be sued in the City of Manila, even if so, the venue of the
action is where the plaintiff resides or where the defendant resides in accordance with Rule 4, and the third
venue is according to the stipulation of the parties. So, the case here has three (3) venues of action. Mamili ka
sa tatlong venues because there is nothing in the agreement that the parties intended that Manila is the only
exclusive venue. There is no restrictive word.
I will change the PROBLEM: Suppose the stipulation contains this statement, “in case of suit arising out of
this promissory note or contract, the parties agree to sue and be sued exclusively in the City of Manila,” yaan!
Or, “to sue and be sued in the City of Manila only.” The addition of the words “exclusively” or “only” shows the
intention of the parties to limit venue of the action only in that place. Therefore you cannot apply Rule 4,
Sections 1-3. So, in this case, Joshua can move to dismiss the case because the venue is exclusive.
So in the second exception where there is an agreement in writing on the exclusive venue, the
word exclusive is very important as taken in the ruling in POLYTRADE vs. BLANCO. So if the venue
is not exclusive, Rule 4 still applies and the stipulated venue is just an additional one.
Of course, there are stipulations which you can see clearly the intention of the parties to limit the venue
only in that place. But sometimes, there are stipulations in which it is difficult to decipher the real intention of
the parties whether exclusive or not. Examples of clear stipulations which calls for the application of the
POLYTRADE ruling: in the City of Manila only or the suit shall be filed in the City of Manila and in no other place.
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However, there are cases in which you cannot find the word exclusive or the word only, and yet the SC said
it seems the intention of the parties to limit the venue as exclusive as what happened in the 1994 case of
GESMUNDO vs. JRB REALTY CORP
234 SCRA 153
FACTS: This involves a lease contract which contain a stipulation on venue. Here is the language
of the lease contract: “venue for all suits, whether for breach hereof or damages or any cause
between the LESSOR and the LESSEE, and persons claiming under each, being the courts of
appropriate jurisdiction in Pasay City…”
In other words, if there is a case, they agreed to file it in the court of Pasay City.
ISSUE: Is this intention of the parties to make Pasay City an exclusive venue?
HELD: Pasay City is the exclusive venue. “It is true that in Polytrade Corporation v. Blanco, a
stipulation that ‘The parties agree to sue and be sued in the City of Manila’ was held to merely
provide an additional forum in the absence of any qualifying or restrictive words. But here, by laying
in Pasay City the venue for all suits, the parties made it plain that in no other place may they bring
suit against each other for breach contract or damages or any other cause between them and
persons claiming under each of them.” In other words, the intention of the parties is to make Pasay
City the exclusive venue.
There are some cases in the SCRA where there is no restrictive word but the SC interpreted it as restrictive.
So it is in conflict with the POLYTRADE ruling because in POLYTRADE, the stipulated place must be exclusive.
Among the cases which seems to conflict with the ruling in POLYTRADE are the following:
BAUTISTA vs. DE BORJA (18 SCRA 476)
HOECHST vs. TORRES (83 SCRA 297)
This conflict was resolved in the case of PHIL. BANKING vs. TENSUAN (228 SCRA 385) where the SC ruled
that the ruling in BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been rendered obsolete by the
POLYTRADE ruling and subsequent cases reiterated it. So the ruling in POLYTRADE is the correct ruling. Forget
what the SC said in the abovementioned two cases.
SWEET LINES vs. TEVES
83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a shipping company with the
head office in Cebu. The respondent Teves is the former City Fiscal of Davao City, former Mayor and
became judge of CFI of Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines bound for Cebu City. During the
trip, they were given a crude treatment by the officers of the vessel. When they came back in
Cagayan de Oro City, they filed a suit for damages against Sweet Lines. They file dht ecase in the
former CFI, now RTC, of Cagayan de Oro City because the plaintiffs are residents of Cagayan de Oro
City.
Sweet Lines filed a motion to dismiss questioning the venue of the action because in the ticket
issued by Sweet Lines, it is stipulated that “…in case of a civil action arising from the contract of
carriage, the venue of the action shall be the City of Cebu ONLY and in no other place.” So there is a
restrictive word. Obviously the lawyers of Sweet Lines knew about Polytrade because they moved to
dismiss the case citing this case.
Judge Teves denied the motion to dismiss the case despite the stipulation. According to him, it is
unfair. If I will dismiss the case based on this stipulation, the aggrieved parties will be discouraged
in going to Cebu. It is very expensive and they will be inconvenienced. But, if the case will go on in
Cagayan de Oro, it will not inconvenienced Sweet Lines because they have their branch office, their
manage and their own lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.
HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people never even bothered
to read this. Nakalagay na iyan diyan eh. So either you take it or you leave it. Therefore,
the passengers did not have a hand in preparing that stipulation. So the contract is a
contract of adhesion.
Second, again for the sake of equity, to be fair that these poor people will be compelled to go to
Cebu to file a case there. They will be discouraged. It is very expensive to go back and forth to
Cebu. Whereas, Sweet Lines has the resources, the means, the lawyers here in Cagayan to litigate.
Therefore, it would be inequitable to compel them or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation. The SC said that
the refusal of the court to apply it is correct. There is no grave abuse of discretion on the part of Judge Teves.
ARQUERO vs. FLOJO
168 SCRA 540
FACTS: Arquero here is lawyer and the municipal mayor of the municipality of Sta. Teresita,
Cagayan Valley. He sent a telegram through the RCPI branch in Cagayan addressed to Manila. Meron
siyang pabor na hihingi-in sa Congressman: I will go there to Manila, I will see you in your office on
this particular date. So pinadala niya iyong telegrama.
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When he went to the office of the congressman after the few days, nagalit pa yung
congressman sa kanya, “So you are here to ask for a favor for your own. Ikaw na ang
nangangailangan, pati telegrama ako pa ang pabayarin mo?! Collect pa!” Arquero was stunned eh
because he paid the telegram. How come naging collect? In effect, he was embarrased.
Pagbalik niya sa Cagayan, f-in-ile-an niya ng damages ang RCPI. But in the RCPI telegraph form,
there is a stipulation that “venue of any action shall be the court of Quezon City alone and in no
other courts.” So the venue is restrictive. With that, Arquero filed an action for damages in the RTC
of Aparri Cagayan and RCPI moved to dismiss for improper venue, stipulation according to the
POLYTRADE case eh.
The trial court moved to dismiss the case because of this restrictive stipulation. Arquero went
to the SC citing the case of SWEET LINES where despite the fact of a restrictive stipulation, SC
refused to apply the POLYTRADE ruling.
HELD. The ruling in Sweet Lines vs. Teves does not apply. You are bound by the stipulation.
Why? You are a lawyer eh. Tarantado ka, bakit ka pumirma?! You are a lawyer. You know all these
things. Why did you sign?
So nayari siya. That was taken against him ha! As a matter of fact, it is there you can read
it. It is in the front, pumirma ka pa sa ilalim. In the case of Teves, you cannot read it.
Nasa likod, very small. In other words, you agree to be bound. As a lawyer, you should
know what you are signing.
Now, he last point to remember about venue is the difference between venue and jurisdiction. In criminal
cases, there is no distinction between jurisdiction and venue. The place of the filing of the case is where the
crime is committed or where the essential elements were committed. Therefore, when the cases is committed
in Davao City, you cannot file a case in Cotabato City. Cotabato has no territorial jurisdiction over the case.
But in civil cases, if you violate Rule 4, do not say that the court has no jurisdiction. You only say, venue was
improperly laid. Yaan! So, if I will file an ejectment case against you in Davao City before the MTC but I am
ejecting you from your apartment in Tagum, do not make the mistake. If I move to dismiss on the ground that
the MTC has no jurisdiction, you are crazy. The MTC has jurisdiction over all unlawful detainer cases. Ang walang
jurisdiction is the RTC. The correct ground is: venue is improperly laid. But if you file the unlawful detainer
case in the RTC, you question the jurisdiction of the court, not the place.
So then, what is the main distinction?
Q: Distinguish JURISDICTION from VENUE.
A: The following are the distinctions:
1.) JURISDICTION refers to the authority the court to hear the case, whereas
VENUE refers only to the place where the action is brought or tried;
2.) JURISDICTION over the subject matter cannot he waived; whereas
VENUE is waivable and can be subject of agreement;
3.) JURISDICTION is governed by substantive law – Judiciary Law, BP 129; whereas
VENUE is governed by procedural law – Rule 4 of the Rules of Court;
4.) JURISDICTION refers to the relation of the parties to the court; whereas
VENUE refers to the relation between the parties; and
5.) JURISDICTION limits the court’s authority; whereas
VENUE limits plaintiff’s rights.
BAR QUESTION: State in what instance the jurisdiction and venue coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in civil cases,
jurisdiction and venue are two different things. They do not coincide.
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Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure – The procedure in Municipal Trial Courts shall be
the same as in the Regional Trial Courts, except
(a) where a particular provision expressly or impliedly applies only to either of
said courts, or
(b) in civil cases governed by the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional Trial
Courts. However, by express provisions in Section 1, the procedure in the Regional Trial Court and the
procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a
particular provision expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A good example of this
is paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is only applicable to MTC. It does not
apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure. That would be the
last law that we will take up. Rules on Summary Procedure applied only to MTC. They do not apply to RTC.
Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as used in these
Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Court, and Municipal Circuit Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in Manila.
Municipal Trial Courts are in cities and municipalities. When the Rule says ‘Municipal Trial Court’, it already
includes Metropolitan Trial Courts, MTCC, MCTC. So that we will not be repetitious.
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PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court for appropriate judgment. (1a)
Actually, we already touched the word “PLEADING” before. In the Constitution when we were asking what is
the basis of the authority of the Supreme Court to enact the Rules of Court or Procedural Law. The Constitution
says, the Supreme Court shall have the authority to promulgate Rules on pleadings, practice and procedure.
Then we discussed jurisdiction over the issues. Jurisdiction over the issues is determined by the allegations in
the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the parties submitted
to the court for appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the defendant will
state also his defense. Pleadings merely tell a story. You tell your story there, the other party will tell his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or writing a letter
to the judge, “Dear judge….” but through the appropriate pleadings. How do they look like? The rules are laid
down. It becomes clearer in the 3rd year subject known as Legal Forms. In that subject you will study particular
forms. They have patterns. In pleadings, you do it in legal manner. You do not say, “Once upon a time…”
The counterpart of pleadings in criminal procedure is information, or the criminal complaint where a
prosecutor will tell what crime you are being accused – what you did, time, the victim, etc.
Sec. 2 – Pleadings allowed – The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.) – party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against
him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are actually two
(2) contending parties: (1) the person suing or filing claim; and (2) the person being sued.
Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc.
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are
familiar with is the complaint. As we go over the Rules, you will understand what do you mean by those
pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your defense. It is known
as the ANSWER. The defenses of a party are alleged in the answer to the pleading asserting a claim against
him. If I file a complaint against you, in response, you will file an answer.
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer invoking
your defenses. If I want to respond to your defenses, I will file a REPLY.
COMPLAINT
ANSWER
REPLY
That is the pattern.
Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) – Party Complaint;
7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint – The complaint is the pleading alleging the plaintiff’s cause or
causes of action. The names and residences of the plaintiff and defendant must be stated in the
complaint.
Q: Define complaint.
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A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A complaint is
also called the INITIATORY PLEADING. Because it is actually the first pleading filed in court. It is the pleading
that starts the ball rolling. It is the pleading that initiates the civil action.
Of course, the names and residences of the defendants must be stated in the complaint. Do you know the
pattern for a complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed money from
Mr. Pito and refused to pay. Normally, it starts with an introduction: “Plaintiff, through counsel, respectfully
alleges that…” Then it is followed by paragraphs which are numbered. For instance:
Illustration:
1.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant Mr.
Peloton also of legal age, a resident of Bajada, Davao City;
2.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00 payable
within one (1) year form said date with legal interest;
3.) The account is already due. Despite repeated demands, defendant failed to and refused to
pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered against the
defendant ordering him to pay the loan of P30,000.00 and interest in favor of the plaintiff.
It is simple. The complaint is composed of 3 paragraphs only – humiram siya ng pera, ayaw magbayad.
That’s all. That is the pattern of a complaint. Your allegations must contain the four (4) elements of a Cause of
Action – the Right, the Obligation, the Delict or Wrong or Violation of Your Right, and the Damage. Hindi
kailangang mahaba ang complaint.
It becomes clearer in the subject of Legal Forms. That is the last subject in the Bar Exam, Legal Ethics &
Practical Exercises. The examinee will be asked, for instance, to prepare a Contract of Mortgage, or prepare a
Complaint for Unlawful Detainer. There are hundreds of forms and you must be prepared to write down a
sample.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading in which a defending party sets forth
his defenses. (4a)
I am the plaintiff. I file the complaint. You received the complaint. You are now required to respond.
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is called
a Responsive Pleading.
Q: Why is it called “Responsive Pleading”?
A: Because it is the pleading which is filed in response to the complaint. It is where you respond to the
cause of action. That is where you state your defenses.
It is something which is not found in Criminal Procedure. A: NO, there is no such thing as Answer in
Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When you plead guilty, tapos na! If you say not guilty,
trial will proceed. No writing of defenses. No written answer in criminal cases. It (pleadings) only applies to civil
cases where you allege your defenses.
Q: What are the defenses under the Rules?
A: That is Section 5.
Sec. 5 – Defenses – Defenses may either be negative or affirmative.
A NEGATIVE DEFENSE – is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause or causes of action.
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.
Defenses may either be negative or affirmative.
b.) Answer; NEGATIVE DEFENSES;
Q: Define an NEGATIVE defense.
A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the statement in the
complaint and you state the facts and the reason/s on which your denial is based. In a negative
defense, the defendant specifically denies a material fact or facts alleged in the pleading of the
claimant essential to his cause of action.
EXAMPLE: The complaint says in paragraph 2, “On November 6, 1996, defendant secured a loan from
plaintiff in the amount of P30,000.00 payable one (1) year from November 6, 1996. The defendant will say in his
answer:
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“Defendant specifically denies the allegation in Paragraph 2 of the complaint. The truth of the
matter being he never secured any loan from plaintiff because he does not even know the plaintiff
and he did not see his face before.”
That is a negative defense. You said I borrowed money from you. “No, I don’t even know you. I have not
seen you before.” He denies the existence of the loan. That is known as the negative defense. It is a denial of a
material fact which constitutes the plaintiff’s cause of action. That’s why it is briefly called a “Defense of
Specific Denial”.
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the
defendant may admit the material allegation in the complaint, however, he will plead a new matter
which will prevent a recovery by the plaintiff. I admit what you are saying in the complaint but still
you are not entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money
from you – admitted! The account is due – admitted! I have not paid you – admitted. “However,
you cannot collect from me because the account has already prescribed.” Meaning, I will admit what
you are saying but just the same, I am not liable. Kaya nga, you confess, eh. I confess to what you say but I
still avoid liability.
Examples of affirmative defenses are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
fraud,
statute of limitations,
release,
payment,
illegality,
statute of frauds,
estoppel,
former recovery,
discharge in bankruptcy, and
any other matter by way of confession and avoidance.
Suppose, you sue me for damages arising from breach of contract. I admit I entered into a contract but I
have no obligation to comply because the contract is null and void. Or,
the contract is illegal. Or, the
stipulation is contrary to public policy, therefore, I am not bound. I admit what you say but I am not liable
because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you file a
case against me for specific performance or for damages. Then I say: “It’s true that I entered into a contract
with you. It’s true I did not comply. But there is nothing you can do because the contract is oral and the
contract is covered by the statute of frauds. In order to be enforceable, we should have reduced it into writing.
Since we never reduced it into writing, I am not bound to comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a defending party may
have against an opposing party. (6a)
EXAMPLE: You file a case against me for damages to your car. According to you in your complaint, while
you were driving your car along the highway carefully. I came along driving recklessly and bumped your car
causing damages amounting to P50,000.00 for repair. Your allegation is based on negligence on my part.
My answer is denial: “That is not true! I deny that! I was the one driving carefully and you were driving
carelessly and negligently. Therefore, if you are the proximate cause of the accident, I’m not liable for the
damage of your car.” That’s my answer – I’m not liable because you are negligent. Because you were the one
negligent, my car was also damaged. I am not liable for the damage on your car. As a matter of fact, you are
the one that should be held liable to pay for the damage of my car. I am now claiming for the damage of
P50,000.00. That is called COUNTERCLAIM.
According to a lawyer who is fluent in Cebuano, he called it balos. He was explaining to his client that they
have counterclaim. That’s a legal term, eh.
Therefore, there is one civil case but there are two (2) causes involved – the main cause of action in the
complaint and that in the counterclaim. There are two (2) issues to be resolved by the court.
Q: If your complaint against me is to recover a sum of money, should my counterclaim also involve
recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature. (De Borja vs. De Borja,
101 Phil. 911) It is possible for you to file case for recovery of a piece of land and my counterclaim is recovery of
damages arising from a vehicular accident.
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Q: Suppose your claim against me is One (1) Million, is it possible that my counterclaim against you is Two
(2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are claiming. A
counterclaim need not diminish or defeat the recovery sought by the opposing party, but may
claim relief exceeding in amount or different I kind from that sought by the opposing party. (De
Borja vs. De Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My counterclaim is, rescission of partnership
contract. Is the counterclaim proper?
A: Yes although there is no connection between what you are asking and what my answer is.
But what is important is tayong dalawa ang naglalaban. If you will not allow me to file my
counterclaim against you, that will be another case in the future. Since nandito na rin tayo, so
lahat ng ating reklamo, we might as well have to finish it. That is allowed.
Q: Why is it that law allows the defendant to counter sue by way of counterclaim the plaintiff?
A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause of action
against me, I will sue you, in the future it will also lead to another case where you will also sue me.
DEBORJA vs. DEBORJA
101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X was appointed as
administrator or legal representative. W owes a sum of money to the estate of A and X filed a case
against W to collect the unpaid loan. X is called the REPRESENTATIVE PARTY under Rule 3, Section 3.
W filed an answer and that W has a claim against X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing in his own
personal capacity. He is acting as administrator of the estate of A. The real plaintiff is
the estate of A. X is just the legal representative. Therefore, you cannot file a
counterclaim against X in the latter’s personal capacity when X is suing W in a
representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that he is
suing the defendant. That’s a principle to remember.
PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A compulsory counterclaim is one which,
being cognizable by the regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject matter of the opposing party’s
claim and does not require for its adjudication the presence of third parties of who
the court cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that in
the original action before the Regional Trial Court, the counterclaim may be
considered compulsory.
Under the Rules, there are two types of counterclaim. 1) COMPULSORY COUNTERCLAIM and, 2) PERMISSIVE
COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a counterclaim compulsory and when is it
permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7. If we will outline Section 7, we
will see that a counterclaim is compulsory if the following requisites are present:
1.) It is cognizable by the regular courts of justice;
2.) It arises out of or it is connected with a transaction or occurrence constituting a subject
matter of the opposing party’s claim;
3.) It does not require for its adjudication the presence of third parties of who the court cannot
acquire jurisdiction;
4.) It must be within the jurisdiction of the court, both as to the amount and the nature thereof,
except that in an original action before the RTC, the counterclaim may be considered
compulsory regardless of the amount; and
5.) The defending party has a counterclaim at the time he files his answer.
The fifth requisite is not found in Section 7 but in Rule 11, Section 8:
Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A compulsory counterclaim
or a cross-claim that a defending party has at the time he files his answer shall be
contained therein. (8a, R6)
Another way of saying it is, the counterclaim has already matured at the time he files his answer. That is the
fifth requisite.
Q: What happens if one of these requisites is missing?
A: If one of the five requisites is missing, the counterclaim is permissive in nature.
We will discuss the elements of a compulsory counterclaim one by one.
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First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE REGULAR
COURTS.
In other words, if you file a complaint against me and I have a counterclaim against you in the
Labor Code, then it cannot be classified as a compulsory claim because how can I invoke against
you a claim which is cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A TRANSACTION
OR OCCURRENCE CONSTITUTING A SUBJECT MATTER OF THE OPPOSING PARTY’S
CLAIM
The second requisite is the most important. A counterclaim, to be compulsory, must arise out of or
connected with the transaction or occurrence constituting a subject matter of the opposing party
concerned. It must arise out of or is connected with a transaction or occurrence constituting a
subject matter of the opposing party’s claim. It must be logically related to the subject matter of
the main action.
So the rule is, if the counterclaim did not arise out of or is not connected with the transaction or occurrence
constituting the subject matter of the opposing party’s concern, the counterclaim must be permissive in nature.
PROBLEM: Emily filed a case against Regina for damages arising from a vehicle collision. According to
Emily, the case of the accident is the negligence of the defendant in driving her car. Her car bumped the car of
Emily and was damaged. So, Emily is holding Regina liable for the damage on her car. Regina denied that she
was negligent. According to Regina, “No, I am not negligent. As a matter of fact, you (Emily) were the one
negligent, and because of that negligence, my car was also damaged. So you should be the one to pay
damages.” Parang ganyan ba.
Q: Is the counterclaim of Regina arising out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party?
A: YES because we are talking of the same bumping. You bumped my car, you say I bumped
your car. So we are talking of the same event or transaction.
PROBLEM: Thea G. (as in ‘Gamay’) files a case against me for recovery of a piece of land. According to her,
she is the owner of the land which I’m occupying. Now, I file my answer, and then I said, “Ms. Guadalope, I
spent a lot of money for necessary expenses to preserve the land. You are also liable to reimburse me for the
necessary improvements expenses I introduced on the land.” Under the law on Property, a defendant or
possessor is entitled to reimbursement for necessary improvements and expenses. So she is trying to recover
the piece of land, I am now asking her to reimburse me for all necessary expenses that I spent on the land.
Q: Is my counterclaim arising out of or connected with the subject matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the counterclaim is compulsory.
PROBLEM: Thea G. files a case against me for recovery of a piece of land. My counterclaim against her is
damages arising from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.
So, those are the examples. That is why, the second requisite is the most important element – a
counterclaim must arise out of or is connected with the subject matter or a transaction or the event or the main
action. By the way, the second element is considered the most important element of compulsory counterclaim
because according to the SC in the 1992 case of
MELITON vs. COURT OF APPEALS
216 SCRA 485
HELD: “It has been postulated that while a number of criteria have been advanced for the
determination of whether the counterclaim is compulsory or permissive, the one compelling test of
compulsoriness is the logical relationship between the claim alleged in the complaint and
that in the counterclaim, that is, where conducting separate trials of the respective claims of the
parties would entail a substantial duplication of effort and time, as where they involve many of the
same factual and/or legal issues.”
Q: What is the importance of determining whether the claim is compulsory or permissive?
A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject
matter of a separate action. Unlike in permissive where you have the choice of invoking it in the
same case, or in a separate action, compulsory counterclaim must be invoked in the same action
otherwise it will be barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. - A
compulsory counter-claim or a cross-claim, not set up shall be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is barred
forever. I cannot claim it against you in any other case in the future. But if the counterclaim is permissive and I
will not raise it as a counterclaim, it is not barred. It can still be invoked in another case against you. It can be a
subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is damaged,
my car is damaged. In my answer, I denied negligence but I did not claim from her the damage to my vehicle.
After the trial, court found the plaintiff at fault. So, the complaint of Vanessa was dismissed. So panalo ako.
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Balikan ko siya ngayon. This time I will file a case against her to recover damages for the damage to my car
since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim.
Compulsory yan eh. So since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The court said
that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman ako for the
necessary expenses. So, I will file a case against her. She moved to dismiss – barred, because I should have
raised that as a counterclaim. I cannot file another case involving that cause of action. That is the effect of
failure to raise the compulsory counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for recovery of land.
My cause of action against her is damages arising against a vehicular collision. Obviously, the counterclaim is
permissive.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not to file
a counterclaim but to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is
permissive. I am permitted to raise it as a counterclaim but I am not obliged. I may decided to file
another action against you. That is the importance between a compulsory counterclaim and a
permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD
PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party
who is, let’s say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since it
involves an indispensable party, I will not raise it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The
trouble is, he is not around. Therefore, the counterclaim is not barred because the third element is
missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION OF
THE COURT BOTH AS TO THE AMOUNT AND NATURE THEREOF.
Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is the jurisdiction
of that case?
A: MTC. Squatting. I will recover a land from a squatter.
Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to reimbursement for
necessary expenses. The theory there is, even if he is a possessor in bad faith, the expenses redounded to the
benefit of the land owner. Anyway, you will spend them just the same as the land owner will have to spend for
them. So it will not be fair if he is not reimbursed. That’s our premise, noh?
PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary expenses that he
spent in my lot. The case I filed against you is forcible entry in the MTC. Your necessary expenses amount to
P300,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which is the subject matter of the main action?
Why not compulsory?
A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary expenses.
This time, that is the missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He cannot use that as a counterclaim
for the forcible entry case because the MTC has no jurisdiction on a counterclaim where the
amount is over P300,000.00.
I will reverse the problem:
PROBLEM: The plaintiff filed against the defendant an action for accion publiciana – recovery for a piece of
land where the value of the property is P1 million. So the case should be filed in the RTC. Now, the defendant is
claiming for the reimbursement of the improvements thereon (necessary expenses) amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of the MTC. This time, the
amount for the counterclaim is below the jurisdiction of the RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: “except that in an original action before
the RTC, the counterclaim may be considered compulsory regardless of the amount.” This
means that the main action is accion publiciana—RTC. The counterclaim is reimbursement for
necessary expenses with arose out of the same land. Normally, the RTC cannot try that but the
answer to this question is YES.
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The RTC can award a claim for damages even though the claim is below its jurisdiction. The principle is:
Since the counterclaim is compulsory, jurisdiction over the main action automatically carries with it
jurisdiction over the compulsory counterclaim. The compulsory counterclaim is merely incidental to
the main action. Jurisdiction of the RTC over the main action necessarily carries with it jurisdiction
over the compulsory counterclaim which is merely ancillary.
But the first example is baliktad. If the main action is with the MTC, it cannot try the counterclaim
with the RTC. It is beyond its jurisdiction. It is not covered by the exception. But if it is the main
action which is within the jurisdiction of the RTC, it can try a counterclaim which is below its
jurisdiction provided it arose out or is connected with the transaction.
That exception is not written in the prior rules but it is a recognized exception laid down by the SC which is
now written down in the law. In the case of
MACEDA vs. COURT OF APPEALS
176 SCRA 440
HELD: “The jurisdiction of the MTC in a civil action for sum of money is limited to a demand that
does not exceed P100,000 (now P300,000) exclusive of interest and costs. A counterclaim beyond
its jurisdiction and limit may be pleaded only by way of defense to weaken the plaintiff’s claim, but
not to obtain affirmative relief.”
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE
TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even if all the other requisites are present,
the counterclaim would still not be compulsory because how can one invoke something now which he can
acquire in the future?
So, those are the five essential elements. You remove one, the counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory or permissive?
A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a
counterclaim in the action where he is being sued. If he fails to invoke it, it is barred forever (Rule
9 Section 2).
If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim in
the case filed against him or he may decide to file another action against the plaintiff, raising it as
his cause of action. It is permitted but not obliged.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC
171 SCRA 605
FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr, under BP 22 or the
Bouncing Check Law, for issuing a bad check. The criminal case was filed before the RTC of Makati.
The complainants did not reserve the civil action. The implication is that the claim for civil liability is
deemed instituted with the criminal case.
Gutierrez in turn filed a civil action for damages against the Javier spouses in the RTC of
Catarman, Northern Samar, where he accused spouses of having tricked him into signing the check.
According to him, “because you tricked me into signing the check for which you are suing me, I’m
holding you liable for damages”.
What happened now is that he was being criminally sued in Makati but defending himself in
Catarman, Northern Samar. He is explaining in the Samar court what he should be doing in the
Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the Makati court that Gutierrez,
as accused in the criminal charge of violation of BP 22, should explain why he issued the bouncing
check. He should explain that story in Makati and not in Samar.
This should have been done in the form of a counterclaim for damages for the alleged
deception by the Javier spouses. In fact, the counterclaim was compulsory and should have been
filed by Gutierrez upon the implied institution of the civil action for damages in the criminal case.
What the SC is saying is, since the civil action for damages is impliedly instituted in the criminal case, and
he wants to hold you liable for filing this case, he should file a counterclaim against you in the criminal case.
What is unique was that for the first time in the Philippine Procedural Law, SC laid down the rule that there is
such thing as a counterclaim in a criminal case, because, normally, counterclaims are only recognized in civil
cases. But since the civil action is deemed instituted in the criminal case, the accused can file a counterclaim
against the offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians – professors of
Remedial Law, authors – they criticized the ruling. It provokes more problems than answers. A justice of the SC
remarked, “I think we made a mistake (privately ba) in the Javier ruling. Kaya it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the case of—
CABAERO vs. CANTOS
271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.
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HELD: “The logic and cogency of Javier notwithstanding, some reservations and concerns were
voiced out by members of the Court during the deliberations on the present case. These were
engendered by the obvious lacuna in the Rules of Court, which contains no express provision for the
adjudication of a counterclaim in a civil action impliedly instituted in a criminal case.”
“By the foregoing discussion, we do not imply any fault in Javier. The real problem lies in the
absence of clear-cut rules governing the prosecution of impliedly instituted civil actions and the
necessary consequences and implications thereof. For this reason, the counter-claim of the
accused cannot be tried together with the criminal case because, as already discussed,
it will unnecessarily complicate and confuse the criminal proceedings. Thus, the trial
court should confine itself to the criminal aspect and the possible civil liability of the
accused arising out of the crime. The counter-claim (and cross-claim or third party
complaint, if any) should be set aside or refused cognizance without prejudice to their
filing in separate proceedings at the proper time.”
“At balance, until there are definitive rules of procedure to govern the institution, prosecution and
resolution of the civil aspect and the consequences and implications thereof impliedly instituted in a
criminal case, trial courts should limit their jurisdiction to the civil liability of the accused arising
from the criminal case.”
This means SC admitted that the Javier doctrine put more problems and confusions in the absence of
specific rules. The counterclaim should not be tried together in a criminal case. The trial court should
confine itself in the criminal action and that the counterclaim should be set aside without prejudice
to its right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1, paragraph
[a], Rule 111 of the 2000 Revised Criminal Procedure:
“No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil action.”
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against a co-party
arising out of the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein. Such cross-claim may include a claim
that the party against whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the cross-claimant.(7)
A cross claim is a claim by one party against a co-party. It may be a claim by defendant against his codefendant arising out of the subject matter of the main action.
EXAMPLE: Jet and Pao are solidary debtors for the sum of P100,000. Jet and Pao signed a promissory note in
favor of Dean to collect the sum of P100,000. However, although Jet signed the promissory note, he did not get
a single centavo. Everything went to Pao. Both of them are now sued. According to Jet, “Actually there is a
possibility that I will pay the P100,000 to Dean when actually I did not even get a single centavo out of it.
Everything went to Pao [bwiset!]!” Therefore, Jet will now file a case against Pao where he will allege that if Jet
will be held liable to Dean, Pao will reimburse him (Jet). So, Jet will also file a claim in the same action against
Pao.
Now, the claim filed by Jet against his co-defendant Pao is called a CROSS-CLAIM where Jet is called
defendant in the case filed by Dean and a cross-claimant against Pao. Pao is also the defendant in the case filed
by Dean and a cross-defendant with respect to the cross-claim filed by Jet. So that is another case which a
defendant is filing against another defendant.
The law says that the “cross-claim arises out of the transaction or occurrence that is the subject
matter of the original action.” In other words, the cross-claimant will assert that the crossdefendant is liable to him for all or part of the claim asserted in the main action against the crossclaimant.
Take note that the cross-claim of Jet against Pao is merely an off-short of the case filed by Dean against Jet
and Pao. Meaning, it arises out of the same transaction or occurrence that is the subject matter of the case filed
by Dean against them.
PROBLEM: Suppose Dean files a case against Jet and Pao to collect a promissory note signed by Jet and Pao.
Tapos, sinabi ni Jet in his cross-claim, “Well, since we are already here, I also have a claim against Pao for
damages arising from a vehicular collision.”
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of Dean against Jet
and Pao. A cross-claim must always arise out of a transaction or occurrence that is the subject
matter of the main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-CLAIM.
A: The following are the distinctions:
1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a co-defendant;
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2.) The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff against the defendants. No main action, no
cross-claim (RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.
3.) A COUNTERCLAIM may be asserted whether or not it arises out of the same transaction or
occurrence that is the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or occurrence that is the subject
matter of the action.
Example: Pao case filed against Jet to collect a loan. Jet files a COUNTERCLAIM against
Pao to recover a piece of land. That is allowed and that is a permissive counterclaim. But
suppose Dean files a case to collect a loan against Jet and Pao. Jet files a CROSS-CLAIM
against Pao to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of the main action.
Take note that a cross-claim is any claim by one party against a co-party arising out of the transaction of
occurrence that is the subject matter of the original action or of a counterclaim therein. So, a cross-claim may
arise our either of the original action or counter-claim therein.
EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim against the
plaintiffs Jet and Pao. So Jet and Pao will now become defendants with respect to the counterclaim filed by
Dean. So Jet now can file a cross-claim against Pao arising out of the counterclaim. So this is an example of a
plaintiff filing a cross-claim against his co-plaintiff because of the counterclaim.
HYPOTHETICAL EXAMPLE:
1.) Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are two plaintiffs suing
two different defendants on a promissory note. Both Jet and Pao signed the promissory note in favor of
Mortz and Charles:
COMPLAINT (Collection case – Main Action):
MORTZ and CHARLES [total: 785 lbs.], plaintiffs
-versusJET and PAO, defendants
2.) Now, according to Jet, every centavo of the loan went to Pao. So Jet files a cross-claim against Pao:
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET [feather weight], now cross-claimant
-versusDefendant PAO [heavy weight], now cross-defendant
3.) Jet also says, “Actually may reklamo ako sa inyong dalawa (Mortz and Charles) because you entered my
land and gathered some of its product [mga patay gutom!!]”. Nag-file siya ng counterclaim against both
Mortz and Charles. In the counter-claim of Jet, ang defendants ay si Mortz and Charles for the
accounting of the improvements on the land:
COUNTERCLAIM OF JET
Defendant JET, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now co-defendants
4.) Mortz now will answer the counterclaim of Jet, “Actually, the damages on land was not caused by me. Si
Charles man ang may kasalanan ba! Yun ang patay gutom!!” So Mortz files a cross-claim against coplaintiff Charles arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Plaintiff MORTZ, now cross-claimant
-versusPlaintiff CHARLES, now cross-defendant
5.) Now, according to Pao, “Actually last month, a car owned by both of you (Mortz and Charles) bumped
my car and that my car was damaged.” So, nag-file naman si Pao ng counterclaim against Mortz and
Charles for the damage of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now defendants
6.) Sabi ni Charles, “I’m not the owner of the car. Si Mortz ang owner. Gago!” So cross-claim naman siya
(Charles) kay Mortz:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO
Plaintiff CHARLES, now cross-claimant
-versusPlaintiff MORTZ, now cross-defendant
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Ilan lahat ang kaso? There are six (6) cases which are to be decided in the same action. This rarely happens,
but it is possible under the rules. The obvious PURPOSE of these is to avoid multiplicity of suits and toward
these ends. According to the SC, the rules allow in a certain cases and even compel a petitioner to combine in
one litigation these conflicting claims most particularly when they arise out of the same transaction. The rule
does not only allow a permissive counterclaim but the parties are even compelled to raise them in a compulsory
counter-claim.
RUIZ, JR. vs. COURT OF APPEALS
212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim against Pao. After a while,
the case against Jet and Pao was dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-action must also be dismissed.
The life of a cross-claim depends on the life of the main action. If the main action is
dismissed, the cross-claim will have to be automatically dismissed.
“A cross-claim could not be the subject of independent adjudication once it lost the nexus upon
which its life depended. The cross-claimants cannot claim more rights than the plaintiffs
themselves, on whose cause of action the cross-claim depended. The dismissal of the complaint
divested the cross-claimants of whatever appealable interest they might have had before and also
made the cross-claim itself no longer viable”
Whereas, the counterclaim can exist alone without the complaint.
EXAMPLE: Pao filed a case against Jet for the recovery of a piece of land. Jet’s counterclaim is damages
arising from a vehicular accident. Na-dismiss ang kaso ni Pao – wala na yung recovery of a piece of land. The
counterclaim of Jet can still remain alive even if the main action is dead.
But in a cross-claim, once the main action is dead, the cross-claim is also automatically dead
too. What is there to reimburse when the complainant has been dismissed? Aber?!
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be
asserted against an original counter-claimant.
A cross-claim may also be filed against an original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-cross-claim. The
concept of counter-counter-claim is not new. As a matter of fact, that was asked in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her to
recover a piece of land. Of course, she have to answer your counterclaim. But she will say, “Actually you have
been molesting me with your claim when actually you have no right over my land.” So, nag-file siya ng
injunction to stop you from molesting her. In other words, based on your counter-claim against her to recover
my land, she will file a counterclaim to stop you from molesting her. In effect, there is counter-claim to a
counter-claim.
COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo.
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his answer
and raises a new matter, affirmative defense. According to the defendant, the obligation is already paid. Plaintiff
said that you have paid the other loan. In other words, the plaintiff would like to deny or dispute the defendant’s
affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?
A: Yes, that pleading is called a REPLY.
Q: How do you classify a reply?
A: It is a responsive pleading because it is the response of the plaintiff to the affirmative
defense raised in the defendant’s answer.
An answer is a response to the complaint and the reply is a response to the answer.
Q: Halimbawa, you would like to answer my reply, what pleading would you file?
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A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So, reply
is considered as the last pleading.
Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What is the effect if
the plaintiff fails to reply? Is he admitting the correctness of the defense?
A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such
reply, all the new matters alleged in the answer are deemed controverted. Meaning, all the
affirmative defenses raised in the answers are automatically denied.
So, whether you file a reply or not, the defenses are deemed automatically disputed. The filing of a reply
is OPTIONAL.
A reply should not be confused with the answer to a counterclaim which is also filed by the plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY.
A: The following:
1.) A REPLY is a response to the defenses interposed by the defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of action by the defendant against
the plaintiff;
2.) The filing of a REPLY is generally optional, whereas
The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory under Rule 11 because if
the plaintiff fails to file an answer to the counterclaim, he will be declared in default on the
counterclaim.
OUTLINE OF FLOW OF PLEADINGS
PLAINTIFF
1.
DEFENDANT
Complaint
2.
3.
a.) Answer
b.) Counterclaim
a.) Reply to answer
b.) Answer to counterclaim
4.
Reply to answer to counterclaim
F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.) party
complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth, etc.) party defendant, for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a)
THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is not a
party to the case.
So, plaintiff files a case against the defendant. Defendant believes that a stranger or somebody else should
be brought into the case and therefore files a motion in court that he be allowed to file a third-party complaint
against such person and therefore the defendant is called third party plaintiff and that third person is a thirdparty defendant.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two debtors and one
of them is compelled to pay everything so the defendant will drag into the picture the co-debtor for contribution
or indemnity. Well, you already learned if there are two of them all he has to do is to file a cross-claim against
his co-defendant. BUT since he is the only one, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right. THERE MUST BE LEAVE OF
COURT. So unlike counterclaim or cross-claim, you do not need any motion or leave of court. Just
file your answer to the counterclaim of cross-claim and that will do, but not a third-party
complaint.
The purpose of third-party complaint is for contribution, indemnity, subrogation and other relief in respect of
his opponent’s claim.
That is why there is a close relationship between a cross-claim and a third-party complaint
because a cross-claim must also be arising out of the subject matter of the main action. A thirdparty complaint must be also related to the main action. It cannot be a cause of action which has
no relation to the main action.
EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of them are
defendants, and the surety seeks reimbursement for whatever amount he may be compelled to pay the
plaintiff. What kind of pleading would he file against his co-defendant (the principal debtor)? CROSS-CLAIM.
BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor is not an
indispensable party and the surety would like to seek reimbursement from the person who benefited from the
loan, he cannot file a cross-claim against anybody because he is the lone defendant. It is possible for him to just
file an answer . If he loses and pays the plaintiff, then he will file another case against the principal debtor for
reimbursement.
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But if he wants everything to be resolved in the same case, what kind pleading will he file? He must resort a
THIRD-PARTY COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party
defendant for: CISO
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the money 50-50. When
the debt fell due, the creditor filed a case against one of them. So, one of them is being made to pay the
P100,000. Not only his share but also his co-solidary debtor. So if I am the one liable when actually my real
liability is only 50,000. What will I do? I will file a third party complaint against my co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an action for
damages against Andrew only, Andrew may file a third-party complaint against Carlo for contribution, their
liability being solidary (Article 2194, New Civil Code)
INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor. But actually the entire amount
went to you and none for me. When the note fell due, I was the one sued. So I will file a third-party complaint
against you for indemnity. You have to return to me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may file a third-party complaint against the
principal debtor for indemnity. (Article 2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your obligation is transferred to me.
EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third person who is
now occupying the property. In effect, the sub-lessee stepped into the shoes of the original lessee. If the
property is damaged and the lessor sues the lessee for damages to his leased property, the lessee or sub-lessor
can file a third-party complaint and have the sub-lessee for subrogation because actually, you stepped into the
shoes when you occupied the leased property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad:
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing a case against
me to claim ownership of the land. But I bought it from Mr. Cruz who warranted that he is the real owner. So I
will now file third-party complaint against Mr. Cruz to enforce his warranty – warranty against eviction. (Article
1548, New Civil Code)
Take note that there is always a connection between the main complaint and the third-party
complaint because the condition is “contribution, indemnification, subrogation and any other relief
in respect to your opponents claim.” There is always a relation between the third party-complaint
and the main complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is that Carlo also
owes Nudj. Nudj says, “I cannot pay you because there is a person who has also utang to me. What I will pay
you depends on his payment to me.” File agad si Nudj ng third-party complaint against Carlo. Is the third-party
complaint proper?
A: NO. There is no connection between the main action and the 3rd-party complaint – the loan
of Nudj to Janis and the loan of Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa
utang ni Andrew kay Nudj? Not in respect to his opponent’s claim.
BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or improper? What are the
tests to determine its propriety?
A: Case of
CAPAYAS vs. COURT OF FIRST INSTANCE
77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a third-party complaint. In
order for it to be allowed, it must pass one of them. That is the reason when you file it, you need the
permission of the court to determine whether it is proper or not and the original plaintiff may object to
the propriety of the third-party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of the same transaction on which
plaintiff is based;
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EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party complaint
for contribution. Anyway, there is only one loan and our liability arises out of the same
promissory note
2. A third-party complaint is proper if the third-party’s complaint, although arising out of
another transaction, is connected with the plaintiff’s claim.
EXAMPLE: The car owner is sued for culpa aquiliana for damages arising from vehicular
collision and he files a third-party complaint against the insurance company for indemnity
based on the contract of insurance. So it is connected with plaintiff’s claim, and that is precisely
the purpose of my insurance coverage.
3. Third party defendant would be liable to the original plaintiff's claim. Although the third
party defendant's liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it to Rudolph. If Roy’s
property is damaged, Roy will sue Eric. But Eric will also sue Rudolph. The sub-lessor has the
right to file a third-party complaint against the sub-lessee for the damaged leased property
which is now occupied by the sub-lessee. The third-party defendant Rudolph would be liable to
plaintiff’s (Roy’s) claim. Rudolph will be liable to Roy for Roy’s claim against Eric although the
liability of Rudolph arises out of another transaction (Sub-lease contract)
4. The third party defendant may assert any defense which the third party plaintiff has or
may have against plaintiff’s claim.
EXAMPLE: Tato is a registered owner of a car and then sold it to Philip. Philip is the actual
owner. However, Philip did not register the sale to the LTO. The registered owner is si Tato lang
gihapon although he is no longer the real owner. While Philip was driving that car it bumped the
car of Lewee Tanduay. Lewee researched the owner of the car at LTO and ang lumabas ay si
Tato. So ang ginawa ni Lewee, ang kinasuhan nya ay si Tato na walang malay...under the law,
the registered owner is liable. Of course, when Tato got the complaint, “Wala akong alam sa
sinasabi nyo, that car is no longer mine. I sold that two years ago, I have no idea what
happened.”
So obviously, Tato arrived at the conclusion that si Philip and nakabangga. Tato filed a thirdparty complaint against Philip because he is the real owner. When Philip got the third-party
complaint, and because he knows the story, in fact he was the one driving, ang ginawa niya,
nilabanan niya ng diretso si Lewee. Meaning, instead of Tato fighting Lewee, Philip fought Lewee
directly. Frontal na ba. Sabi ni Philip, “I was not at fault, you (Lewee) are at fault.” So here is a
situation where Lewee sues Tato, Tato sues Philip but Philip fights Lewee, as if he is the real
defendant, then the third party complaint must be proper. It must be related.
So those are the samples of third party complaint which are correct.
Take note that there is a close similarity between a third-party complaint and a cross-claim because as we
have learned, a cross-claim must also be related to the same action. So we will go to some interesting case on
third-party complaint.
SAMALA vs. VICTOR
170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding on a passenger jeep owned
by Tato, the jeep was bumped by the truck of Lewee, injuring Philip. Philip filed a case for damages
arising from breach of contract against Tato. Tato filed a third-party complaint against Lewee. After
trial, the court found that Tato has not at fault. The fault is entirely against Lewee . So the action
against Tato was dismissed, but the court held that Lewee be directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is liable to Philip because
Philip did not sue me (Lewee), “Bakit ako ang ma-liable hindi naman ako ang dinemanda ni Philip?
So procedurally, I am liable to Tato, Tato is liable to Philip.”
ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to Philip, the original
plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is liable to Tato. But
Lewee can be made liable to Philip, or Lewee can be made liable to both Philip and Tato be cause
that is covered by the phrase “OR ANY OTHER RELIEF” – so broad that it cover a direct liability of a
third party defendant to the original plaintiff.
ISSUE #2: How can the court award damages to Philip based on the theory of culpa aquiliana
when his complaint is based on culpa contractual? Can Lewee be held liable for culpa-contractual?
HELD: YES. That is also possible because “the primary purpose of this rule is to avoid
circuitry of action and to dispose of in one litigation, the entire subject matter arising
from a particular set of fact it is immaterial that the third-party plaintiff asserts a cause
of action against the third party defendant on a theory different from that asserted by
the plaintiff against the defendant. It has likewise been held that a defendant in a
contract action may join as third-party defendants those liable to him in tort for the
plaintiff’s claim against him or directly to the plaintiff.”
Another interesting case which is to be compared with the abovementioned case is the 1989 case of
SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY
167 SCRA 386
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NOTE: This case although it refers to third-party complaint is related to criminal procedure. This
is similar to the case of JAVIER where the issue is, is there such a thing as a counterclaim in a
criminal case where the offended party did not make a reservation. In SHAFER, is there such a thing
as a third-party complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped another car driven by T. T filed a
criminal case against S for physical injuries arising from reckless imprudence. T did not make any
reservation to file a separate civil action. So obviously, the claim for civil liability is deemed
instituted.
Shafer was covered by the insurance, so he filed a third-party complaint against the insurance
company insofar as the civil liability is concerned. The insurance company questioned the propriety
of d third-party complaint in a criminal case, because according to the insurance company, the
third-party complaint is entirely different from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a criminal case is procedurally
correct.
HELD: Yes, it is proper. There could be a third party complaint in a criminal case because an
offense causes two classes of injuries – the SOCIAL and the PERSONAL injury. In this case, the civil
aspect of the criminal case is deemed impliedly instituted in the criminal case. Shafer may raise all
defenses available to him in so far as the criminal and civil aspects are concerned. Shafer’s claim of
indemnity against the insurance company are also the claim by the victim in the criminal claim.
Therefore Shafer’s claim against the insurance company is related to the criminal case. So similar
to Javier that an accused may also file a compulsory counterclaim in a criminal case when there is
no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime because there is no such thing as
third-party complaint in criminal cases now. In other words, forget it in the meantime.
Also, forget counterclaims in criminal cases even if they arose out of the main action.
This case refers to JAVIER on whether or not there is such a thing as a compulsory counterclaim
in criminal cases. SC said, “Huwag muna samok!” If we will allow it in criminal cases it will only
complicate and confuse the case. The attention might be divested to counterclaims or cross-claims
or third-party complaints, etc.
HELD: “The trial court should confine itself to the criminal aspect and the possible civil liability
of the accused arising out of the crime. The counter-claim (and cross-claim or third party complaint,
if any) should be set aside or refused cognizance without prejudice to their filing in separate
proceedings at the proper time.”
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.
25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting to P300,000. So it was filed in
RTC. Rina filed a third-party complaint against ConCon Insurance Company for indemnity insurance
but the maximum insurance is only P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-party complaint is only for P50,000 which is
supposed to be within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party complaint is only
incidental. The third-party complaint need not be within the jurisdiction of the RTC
where the principal action is pending because the third-party complaint is really a
continuation and an ancillary to the principal action. If the court acquires jurisdiction
over the main action, automatically, it acquires jurisdiction over the third-party complain
which is mainly a continuation of the principal action.
Now, the same situation happened in another case. The case of
EASTER ASSURANCE vs. CUI
105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu City. Carol filed a case
before the RTC of Davao City against Cathy. Cathy files a third-party complaint against Joy, a
resident of Manila. Is the venue proper?
HELD: The venue is proper because the venue of the main action is proper. So
automatically third-party complaint is also proper. The third-party has to yield to
the jurisdiction and venue of the main action.
Now of course, if there’s such a thing as 3rd party complaint, there is also a 4th, 5th, 6th or 7th complaint.
That is possible but everything is with respect to his opponent’s claim.
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EXAMPLE:
A
A files a complaint
against B
B
B files a 3rd party
complaint against
C
C
C files a 4th party
complaint against
D
D
E
D files a 5th party complaint
against E
A’s car was bumped by B. But B contented that the reason that he bumped A’s car was because he was
bumped by C and the same goes to C, D, E. B then files a 3rd party complaint against C. C files a 4th party
complaint against D. D files a 5th party complaint against E. Meaning, pasahan, ba. They will throw the liability
to the one who did it. That is a good hypothetical example of how a fourth, fifth, sixth party complaint can
come into play.
Sec. 12. Bringing new parties. - When the presence of parties other than those to
the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order them to be
brought in as defendants, if jurisdiction over them can be obtained.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS
183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer. Sapugay filed a
answer and interposed a counterclaim for damages against Mobil and included Cardenas (the
manager of Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is proper where he is not a
plaintiff in the Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that the defendant cannot
by a counterclaim bring into the action any claim against persons other than the
plaintiff, admits of an exception under this provision (Section 12) – meaning, if it is
necessary to include a 3rd person in a counterclaim or cross-claim, the court can order
him to be brought in as defendants. In effect, the bringing of Cardenas in the case is
sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN
198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general) represented the government for
PCGG. The case arose out of PCGG cases wherein Enrile was sued for accumulation of his ill-gotten
wealth. Enrile filed an answer to the complaint. Enrile contends that the case is harassment suit
whose mastermind was the Solicitor General himself. Enrile files a counterclaim against Chavez.
(Enrile’s lawyer maybe well aware of the Sapugay case the one sued is the lawyer.) Chavez
questioned such counterclaim contending that he was not a plaintiff. Sandiganbayan denied such
contention.
HELD: The inclusion of plaintiff’s lawyer is improper.
“To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely
their representative in court and not a plaintiff or complainant in the case would lead to
mischievous consequences. A lawyer owes his client entire devotion to his genuine interest, warm
zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.
A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy
defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it? Does that mean
to say that the lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However,
when he acts in the name of the client, he should not be sued in a counterclaim in the very same
case where he has filed only as a counsel and not as party. Only claims for alleged damages or
other causes of action should be filed in a separate case. Thus, if you feel that the lawyer is acting
maliciously, you file a complaint but in a separate case. That’s why the case of Sapugay should not
be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third (fourth, etc.)-party
defendant may allege in his answer his defenses, counterclaims or cross-claims, including such
defenses that the third (fourth, etc.)-party plaintiff may have against the original plaintiff in
respect of the latter's claim against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
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B files a 3rd party complaint against C
C
A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend himself in the
complaint of B. That is supposed to be the pattern. Normally, C does not file a direct claim against A. But the
law allows C in defending himself, to answer the claim of A. The law allows him to file a direct
counterclaim against A.
If C has the right to frontally meet the action filed by A – meaning, C will fight A directly – if C has the right
to assert any defense which B has against A and even for C to litigate against A, then it must be a proper third
party complaint. That has happened several times.
EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered the transaction.
On the record, B is still the registered owner. Then C, while driving the car, meets an accident and injures A.
When A looked at the record, the owner is B. So A files a case against B. So B will file a third party complaint
against the real owner (C). Now, C can frontally meet the complaint filed by A. That is the best example where
you have the right against the original plaintiff or even assert a counterclaim against him. As a matter of fact,
that last test is now incorporated as a new provision (Section 13).
In the case of:
SINGAPORE AIRLINES vs. COURT OF APPEALS
243 SCRA 143 [1995]
FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint against and Cyle
who wants to frontally meet the main complaint filed by Aying
HELD: If that is your purpose, you have to file two (2) answers – you file an answer to
the third party complaint and you file a second answer to the main complaint filed by
Aying.
“A third-party complaint involves an action separate and distinct from, although
related to, the main complaint. A third-party defendant who feels aggrieved by some
allegations in the main complaint should, aside from answering the third-party
complaint, also answer the main complaint.”
Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the complaint of Aying.
But according to SINGAPORE case, if Cyle feels aggrieved by the allegations of Aying, he should also answer the
main complaint of Aying. Practically, he shall answer the 3rd party complaint and the main complaint.
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Rule 7
PARTS OF A PLEADING
This is more on Legal Forms, a third year subject. That is a bar subject. That is the last subject given on the
fourth Sunday. The last subject in the bar is Legal Ethics and Practical Exercises where an examinee will be
asked to prepare pleadings like answer, complaint, information.
Sec. 1 – Caption. The caption sets forth the name of the court. The title of the action, and
docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the
original complaint or petition; but in subsequent pleadings it shall be sufficient if the name of
the first party on each side be started with an appropriate indication when there are other
parties.
Their respective participation in the case shall be indicated.
ILLUSTRATION:
Republic of the Philippines
11th Judicial Region
Regional Trial Court of Davao
Branch 12
CAPTION
Juan dela Cruz,
TITLE
Civil Case #12345
For: Annulment of Contract
Plaintiff
-versus-
BODY
Osama bin
Laden
COMPLAINT
Plaintiff, through counsel respectfully alleges
that:
1. x x x x x x;
2. x x x x x x;
So, there must be a caption, title. Take note, the title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in the subsequent pleadings, it shall be sufficient if
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the name of the first party of each side be stated without the others. You only write the first name of plaintiff
and defendant and followed by the word ‘ET AL”.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now is
it necessary that they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3
or more pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of
everybody. What the law requires is to write the name of the first plaintiff followed by the term ‘ET
AL”. Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants.
So the rule is, it is only in the complaint where the name of all the parties are required to be
stated, but in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are
instances where the law does not require the name of the parties to be stated even in the
complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in the
complaint?
A: These are the following: SCIEO
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar
vs. City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its designation, the
allegations of the party's claims or defenses, the relief prayed for, and the date of
the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be divided into
paragraphs so numbered as to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding
pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the statement of
the first shall be prefaced by the words "First cause of action", of the second by
"second cause of action," and so on for the others.
(c) Relief - The pleading shall specify the relief sought, but it may add a general
prayer for such further or other relief as may be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call
PRAYER – what you are asking the court: “Wherefore, it is respectfully prayed that judgment be rendered
ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until fully paid.”
Then, you end up with the date of the pleading: “Davao City, Philippines, December 10, 1997.”
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint starts :
“Plaintiff, thru counsel, respectfully alleges that x x x.” Then first paragraph, second paragraph and so on. The
first paragraph is normally the statement of the parties and their addresses which is required under Rule 6
where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro
Bautista, is also of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much
payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-sagot
ng Answer, he will just refer to the #, “I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint embodying two
or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there are
three causes of action. The lawyer of Angelo decided to file only one complaint collecting the three promissory
notes. Now, how should he prepare the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is not
paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loan…became payable and is not
paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you prepare
your complaint. On the other hand, the defendant will answer:
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ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your exhibits,
you might get confused because you combined all the three causes of action in one paragraph. But
with this one, the presentation is clearer, the outline is clearer and it is more scientifically
arranged than joining them in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for such
further other relief as may be just and equitable like yung mga pahabol na “Plaintiff prays for such further or
other relief which the court may be deemed just or equitable.” Meaning, aside from the relief sought, Kung
meron ka pang gustong ibigay, okay lang. That is the general prayer.
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate what is the nature of the cause of action.
Cause of actions are mere allegations. Prayer is not part of the action but it is important because it might
enlighten us on the nature of the cause of action. That is the purpose of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at the caption, it is
a personal action which should be instituted in the place where the parties reside. But if you look at the prayer:
“Wherefore, it is respectfully prayed that after trial, the deed of sale shall be annulled on the ground of
intimidation, and the ownership of the land sold to the defendant in Digos be ordered returned.” Actually, you
are trying to recover the ownership of the land. So in other words, it is not a personal action but a real action.
Sec. 3. Signature and Address.- Every pleading must be designed by the party or
counsel representing him, stating in either case his address which should not be a
post office box.
xxxxx
Signature and address – every pleading must be signed by the party or the counsel representing him. Take
note of the prohibition now: You must state your address which should not be a post office box because one
difficulty is that the exact date when you claim your mail cannot be determined if it is a P.O. box. But if it is
served to his office, the exact date can easily be determined.
Before, I met a situation where the lawyer filed a motion or a pleading stating only his telephone number.
My golly! that is worse! How will I send my reply? Through telephone also? (sa text kaya?)
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
“The signature of counsel constitutes a certificate by him that he has read the
pleading; that to the best to his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.”
Q: When a lawyer signs a pleading, what is he certifying?
A: Second paragraph says, he is certifying that he has read the pleading, that to the best of his knowledge,
information and belief, there is a good ground to support it, and it is not interposed for delay. That is called as
and IMPLIED CERTIFICATION IN A PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already asked in
the bar once.
BAR QUESTION: What is the meaning of the phrase “Implied Certification in a Pleading”?
A: “Implied Certification in a Pleading” means that when a lawyer signs a pleading he is certifying
that he has read it, to the best of his knowledge, information and belief there is a good ground to support it, and
it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was
due to mere inadvertence and not intended for delay. Counsel who deliberately files
an unsigned pleading, or signs a pleading in violation of his Rule, or alleges
scandalous or indecent matter therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been
filed.
Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because he was hurrying
to file the pleading, the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because the law says, “however,
the court, may in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.” Maybe, alright, you sign it now in order that it will produce a
legal effect.
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However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then, according to the
rules, he shall be subject to appropriate disciplinary action. That is practically unethical ‘no? Not only that, he is
also subject to disciplinary action if he signs a pleading in violation of this Rule or alleges scandalous or
indecent matter therein, or fails to promptly report to the court a change of his address. These are the grounds
no.
Now, this ground – fails to promptly report to the court a change of his address has been inserted in 1997
Rules, this was not found in the prior Rules. Siguro, the SC has discovered that this has been the cause of delay
in litigation.
Q: What do you mean by this?
A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his office without
telling the court or the opposing counsel of his new address. So, the court will be sending notices and orders to
his old address and it is returned to sender because the lawyer already moved to another place. So, it causes
delay ba.
So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to inform
the court and even the opposing counsel about his new address so that all court orders, decisions
and all pleadings will be served on his address. I think what prompted the SC to insert this is the
fact that it has been the cause of delays in many cases.
VERIFICATION
Sec. 4. Verification.- Except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct to the best of his knowledge and
belief.
A pleading required to be verified which contains a verification based on
"information and belief," or upon "knowledge, information and belief," or lacks a
proper verification, shall be treated as an unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?
A: It means that there is an affidavit accompanying the pleading that the pleader will certify
that he prepared the pleading, that all allegations therein are true and correct. For example: In the
pleading the plaintiff will say:
I, Juan de la Cruz of legal age, after being sworn in accordance with law, hereby say
that:
I am the plaintiff in the above entitled case.
I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
Affiant
Subscribed and sworn to before me on this 2nd day of October 2001, in the City of
Davao, Philippines.
Panfilo Corpuz
Notary Public
That is what you call verification of a pleading. That the pleader, whether plaintiff or defendant, will attest
that the allegations in his complaint or in his answer are true and correct of his own knowledge. And then, he
will sign it, and then below that, there will be the so-called “JURAT” - Subscribed and sworn to before me on this
___ day of December 1997, in the City of Davao, Philippines. Then, signed by the notary public. Meaning,
statements, in the pleading are confirmed to be correct, under oath, by the defendant. That is called, the
verification of a pleading.
The purpose of verification is to insure good faith in the averments of a pleading. Although lack
of verification in a pleading is a formal defect, not jurisdictional defect, and can be cured by
amendment. (Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
Q: What do you think will happen if a pleading is verified by a party and it turns out that the allegations are
false? And that he deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the crime of
perjury, because that is a false affidavit. But if the pleading is not verified, even if they are false,
there is no perjury, because perjury requires a sworn statement by the accused.
Q: How is a pleading verified?
A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and
that the allegations therein are, true and correct of his knowledge and belief.
Q: Suppose I will say, “the allegations there are true and correct based on my ‘information’ and
‘belief’.”
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A: According to the paragraph 3, verification is not sufficient, because you can always claim na
“Ganoon pala, hindi pala totoo. Sorry ha? That is my information eh.” Meron kang lusot ba. So, you
must say ‘they are true and correct based on my own knowledge.’ ‘Information’ will not suffice.
Under the prior rule, a proper verification must be based on “knowledge” – the allegations therein are true
and correct of my own knowledge. Now, “knowledge and belief”, and yet the third paragraph says, “based on
knowledge, information and belief” is bawal. So, “knowledge, information and belief” is improper, but
“knowledge and belief” only is proper. So tanggalin mo lang yung ‘information’ to make it proper.
Q: What happens if a pleading is not verified when the law requires it to be verified? Is that a fatal defect?
A: The pleading is defective but it is only a formal defect. The court still has jurisdiction over
the case. If the defect is formal, it can be cured by amending the pleading and verifying. So, it is a
defective pleading but the defect is formal, it is not substantial or jurisdictional. Therefore, the
case should not be dismissed. The pleading can be amended to include verification.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise
specifically required by law or this rule. When the law or rules require a pleading to be verified,
then it must be verified, otherwise it is formally detective. If the law is silent, verification is not
necessary and the pleading is filed properly.
Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be verified, there
are many. They are scattered throughout the Rules and we will meet some in the course of going over the Rules.
I think that question has already been asked 3 times in the BAR. The last time was in 1995. Meaning, the
examiner was asking for the exceptions. You cannot find one rule or one section where you will get all the
answers in that section because they are scattered, sabog eh. So, practically, it requires the Bar candidate to
have a grasp of the entire Rules so that he will be able to recall as many pleadings as there are, which require.
From time to time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified.
A: The following: (taken from the 4th year Remedial Law transcription) DSS
1.) Rule 8 – when you deny the due execution of an actionable document;
2.) Summary Rules – all pleadings under summary rules should be verified;
3.) Special Civil Actions – petitions for certiorari, prohibition and mandamus.
I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it verified.
What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will verify it.
Is there something wrong with it? Technically, none. But if it is required to be verified and you omit the
verification, it is formally defective.
So he said, “In other words Sir, it is better pala that you will verify every pleading para sigurado. No harm
man kaya? At least, even if there is a verification, when it is not required, no harm.” That’s true, no harm but if
a lawyer does that, that only shows he does not know the rules. He cannot identify which pleading requires to
be verified because he will automatically verify everything.
And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now I
verify it, and it turns out to be deliberately false, you are courting a criminal prosecution for your client for
perjury. In other words, you create a crime of perjury when actually there should be none in the first place. The
policy may be playing it safe but it produces other effects. Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the principal party shall
certify under oath in the complaint or other initiatory pleading asserting a claim for relief,
or in a sworn certification annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commence any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such
other action or claim is pending therein;
b)if there is such other pending action or claim, a complete statement of the status thereof;
and
c)if he should thereafter learn that the same or similar action or claim has been filed or
pending, he shall report that fact within (5) days therefrom the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise provided, upon motion and
after hearing. The submission of a false certification or non-compliance with any of the
undertakings therein, shall constitute indirect contempt of court, without the prejudice to the
corresponding administrative and criminal actions. If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt, as well as a cause for
administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an unethical
practice when a lawyer or a party files identical cases in two or more tribunals hoping that if he may fail in one
case, he will succeed in another forum. Now, maybe this practice has become rampant before, not so much in
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Davao City but maybe in Metro Manila because most of the abuses in the bar happen in Metro Manila not in the
provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to assure good
faith. So everytime you file a complaint you must certify under oath that you have not filed any other case of
this nature in any other court. More or less, you will follow the language found in the first paragraph. And this
requirement was originally found in a Circular 04-94 of the SC. It is now incorporated in the new rules in Section
5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification on
non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the
complaint but the law says: “Complaint or other initiatory pleadings” such as counterclaims, crossclaims, third-party complaints. Therefore, all these pleadings require certification against forum
shopping.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum shopping? That
is a ground by itself for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there was no certification of non-forum
shopping, therefore, automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for
the dismissal of the case without prejudice.” Meaning, you can still re-file the case with the
inclusion of the certification against forum shopping. Pwede mong ulitin, you re-file the same
complaint. That is the meaning of ‘without prejudice.’
“Unless otherwise provided, upon the motion after hearing” – meaning, it is now discretionary
on the court to determine whether to dismiss or not to dismiss. Of course, it is a ground for
dismissal, but the court may say, “Okay, we will just amend it. We will not dismiss.” But definitely,
you cannot insist that because I already amended, everything is cured. That is for the court to
determine whether to dismiss or not to dismiss. So, mere amendment does not cure automatically
the missing certification.
I think this provision that mere amendment does not cure automatically the missing certification for nonforum shopping was taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.
249 SCRA 604
HELD: “The mere submission of a certification under Administrative Circular No. 04-94 after the
filing of a motion to dismiss on the ground of non-compliance thereof does not ipso facto operate as
a substantial compliance; otherwise the Circular would lose its value or efficacy.”
As a matter of fact, if the certification is deliberately false there are many other sanctions – contempt,
possible administrative actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise the case
will be dismissed. Some lawyers argue that the certification is not required in compulsory counterclaims. It is
only required in permissive counterclaims because in permissive counterclaims, the claimant has two choices:
(1.) to file a counterclaim in the same case, or (2.) to file a separate case. Another view is that, since Section 5
does not distinguish, we should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA
294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive
counterclaims because there is no possibility of forum shopping in compulsory
counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil
Procedure, i.e., that the violation of the anti-forum shopping rule ‘shall not be curable
by mere amendment . . . but shall be cause for the dismissal of the case without
prejudice,’ being predicated on the applicability of the need for a certification against
forum shopping, obviously does not include a claim which cannot be independently set
up.”
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Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general – Every pleading shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate facts on which the party pleading
relies for his claim or defense, as the case may be, omitting the statement of mere
evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated.
In so far as pleadings are concerned, it must only state the ultimate facts where you relied your defense or
complaint. You must omit the statement of mere evidentiary facts. The basic question here is, what do you
mean by ultimate facts? What are evidentiary facts? Distinguish ultimate facts from evidentiary facts.
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?
A: Ultimate facts are those which is are essential to one’s cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the
statement in the pleading cannot be deleted. Because if you delete it, the statement of your cause
of action or defense become incomplete, a certain element of cause of action disappears then it
must be a statement of ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you
delete it and there is still a cause of action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action?
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A: The following:
1.) Statement
2.) Statement
3.) Statement
4.) Statement
of
of
of
of
the right;
the obligation;
the violation; and
damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four are present. Now,
for example a complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat? We will shorten it by
analyzing sentence by sentence. I will remove paragraph #2. Are the elements of the cause of action still
present out of the remaining paragraph? If the answer is yes, then, paragraph #2 is not a statement of ultimate
fact. We will remove paragraph #5, the story is still complete, there is still a cause of action, then, the
paragraph or the statement that you removed is not a statement of ultimate facts. Suppose I will remove
paragraph #7, kulang na man, the allegation of the violation of the right is no longer present, then, the
paragraph #7 cannot be deleted, otherwise, if you delete it the statement or the story or the cause of action
disappear. Then, that is an ultimate fact.
So if the statement can be deleted and the cause of action is still complete, then it is not a
statement of ultimate fact. It is only a statement of evidentiary fact.
Q: What are evidentiary facts?
A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in the
pleading. They should be brought out during the trial. They are proper during the trial but they have no place in
your pleading.
In the law on Evidence, ultimate facts are called facturn probandum as distinguished from factum
probans (evidentiary facts).
EXAMPLE: In a land dispute, the question is: Who has been in possession of the land for a long time? I
claim I’m the one. So, I will say, “plaintiff has been in possession of this land continuously for the past 30
years.” That is a statement of ultimate fact because that shows your right – your right over the property –
that you cannot be driven out. Thirty years na gud iyan.
Suppose the lawyer wants to impress the court that the statement is true, the pleading describing
continues possession for the past 30 years from 1967 to 1997. And therefore, the lawyer will now prepare the
complaint in this manner:
Plaintiff has been in possession of the said property continuously, openly for the past
30 years from 1967 to 1997 as may be born out by the following:
He entered the property in 1967. He cleared the property by cutting the grass. In
1968, he planted 20 coconut trees. In 1969, he planted 50 coconut trees. In 1970, he
planted mango trees. In 1971, he planted guava. He will recite everything from 1967 to
1997.
That will really prove that he have been there for the past 30 years because continuous eh, - every year you
are reciting your activities including the taxes that you paid, the receipt, “‘yan o, eto and resibo ko!” Now, if a
lawyer will do that, his complaint will reach 100 pages. Do you know why? Because he violated Section 1. He
did not only state the ultimate facts but he also stated the evidentiary facts. So, what should be the correct
pattern? Complaint:
Plaintiff has been in continuous possession of the property for 30 years from 1967 up
to the present.
That is the ultimate fact. You do not have to recite exactly what you did because that is what I intend to
prove. Now, of course, during the trial, how can I convince the court that I have been in possession of the
property for 30 years? Kailangan you have to convince, di ba? Then, during the trial, you present the plaintiff
and you ask the plaintiff: Mr. Plaintiff, when did you occupy the property? – “1967” – When you first occupied
the property, describe it. – “Ah, bagnot! I have to clean it. So I clean it in 1967.” – In 1968, were you still there? –
“Oh yes!” – What did you do in 1968? – “I planted coconut trees.” – Did you pay taxes in 1968? – “Yes!” –
Where’s the receipt? – “Eto o!”
Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary facts should be
brought out in court not in the pleadings, otherwise your pleading become kilometric. That is what is meant by
the phrase that you only state the ultimate facts omitting the statement of evidentiary facts.
Another Example:
Collection case. Sabihin mo: “The defendant borrowed money and then it fell due. I made
demands for him to pay, but despite repeated demands he refused to pay.”
Tama na iyon. You do not have to state in your complaint that “when the account fell due last November 5, I
called him up by telephone. He promised to pay in November 7 and called him again and he promised to pay
tomorrow…” Hindi na kailangang sabihin mo iyan! Those are evidentiary facts. But during the trial, you can
narrate that I have been writing, “eto o, andami kong sulat, I have been calling him by telephone but he kept
on promising.” So, mag-istorya ka na ng detail sa husgado. Those are what you call evidentiary facts. But in
your complaint you do not have to recite all those.
Under Section 1, you state the ultimate facts on which you rely your claim or defense. How do you state
the facts? Section 1 says that statement of ultimate facts must be stated in a methodical and logical form and
you must use plain, concise and direct statements or language. The simpler the language, the better. A
pleading is not a vehicle for you to show your mastery of the English language. The judge might throw away
your complaint for not using simple language.
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I was reading an article about the use of plain, concise and direct language. I remember- Do not use this
word, rather use this word. For example, do not use the word ‘conflagration,’ use ‘fire.’ The latter is simpler.
How do you present the facts? Methodical and logical form. It is a matter of writing style. Every
person has his style of writing. Corollary, every person expects you to write in a methodical or logical form. We
have said earlier that a pleading actually tells a story. Plaintiff tells the court his story. Defendant tells his
story, too. How will the court understand your story? Your presentation must be methodical and logical.
Writing style is a gift, no? Some people tell their story clearly, others don’t understand. Sasabihin mo,
sabog ka mag-storya. Ang labo mo! It is not methodical and logical. Courts expect lawyers to present case in
a methodical and logical form.
What is the first test whether you style is methodical or logical? The best exercise is your own answer in
examinations. In a problem, you answer and you try to argue why. You try to present your answer in a clear
manner. It must be methodical and logical.
In your examinations, you may wonder why you got a different score with your classmates where in fact the
substance of your answers is the same. Precisely because the presentation of the answer also matters. Siya 80,
ikaw 75. Tingnan mo ang kanyang presentation, mas maganda. To know the answer is not enough, you must
know HOW to answer. Especially in the Bar exams where the corrector is correcting more than 4,000
notebooks, your notebook must project itself as if your notebook is telling the corrector: Read me! Read me!!
That is the formula to pass law school and the Bar.
PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that should not be stated in the pleading?
A: The following: PCJ
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading. When a fact is already
presumed by law, there is no need to make that allegation because your cause of action would still
be complete.
Example:
Q: In a case of breach of contract against an operator of the common carrier. Do you think it is necessary for
the plaintiff to allege that the driver acted negligently? Is an allegation that the driver of the carrier acted with
negligence required?
A: NOT required. There must be negligence, otherwise, there would be no cause of action. However there is
no need to allege it in the complaint because under the Civil Code, whenever there is a breach of contract of
carriage, there is a presumption of negligence on the part of carrier. It is not for the passenger to prove that the
common carrier is negligent. It is for the common carrier to prove that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract between the parties,
the liability of the defendant hinges on negligence. There must be allegation of negligence. The defendant
must be alleged to have acted negligently to hold him liable. Otherwise, there is no cause of action. It becomes
an ultimate fact which should be alleged in the pleading.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the pleading. A statement of
fact is different from a conclusion of fact or law. For EXAMPLE, where plaintiff said that he is entitled to
moral damages or attorney’s fees. That is not a statement of fact but your conclusion.
Statement of fact is to cite the basis why you are entitled – you must state the reason why you are entitled.
The statement of the ultimate fact as distinguished from conclusion was the old case of
MATHAY vs. CONSOLIDATED BANK
58 SCRA 559
HELD: “A bare allegation that one is entitled to something is an allegation of a conclusion. Such
allegation adds nothing to the pleading, it being necessary to plead specifically the facts upon
which such conclusion is founded.”
You must plead the facts upon which your conclusion is founded. To say that you are entitled to something
is not actually a statement of fact but merely a conclusion of the pleader. It adds nothing to the pleading.
For EXAMPLE: The complaint alleges that the defendants are holding the plaintiff’s property in Trust for the
plaintiff. Trustee ba – you are holding the properties in trust for me without any explanation of the facts from
which the court could conclude whether there is a trust or not. The SC in the case of MATHAY said that that
statement is merely a conclusion of the plaintiff. You must state the basis of your statement that they are
holding your property in trust.
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Frankly speaking, there are numerous complaints which are convincing but upon reading them thoroughly,
you will realize that majority of the statements are not statements of facts but conclusions of law. Tatanggalin
yung conclusion. It is bad complaint when you say that you are entitled to this without stating your basis.
So statement of law is not allowed although there is an exception under the second paragraph
of Section 1 which says that “if a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely stated.” At least now you can
quote the law. Sometimes a defendant when he files his answer, his answer is purely based on law.
He must cite the legal provision in his answer and explain WHY is it applicable to him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
Sec. 2.
Alternative causes of action or defenses. - A party may set forth two or
more statements of a claim or defense alternatively or hypothetically, either in one
cause of action or defense or in separate causes of action or defenses. When two or
more statements are made in the alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient by the insufficiency of one
or more of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically?
A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The
insufficiency of one will not affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when you are a
passenger and you get hurt, that is culpa contractual. If you are not a passenger and you get hurt due
to the negligence of the driver, that is culpa aquiliana. So it depends whether there is a contract of
carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the left foot had
already stepped on the bus. The bus suddenly sped up. He fell. He was not able to ride because
umandar man bigla. He was injured. What is the basis against the carrier? Is there a contract or
none? There is! Nandoon na nga ang kaliwang paa, eh. Sabi ng iba, wala pang contract. Well, may
mga kaso talaga na malabo. You don’t really know whether your cause of action is culpa contractual
or culpa aquiliana. You want to claim damages but you are not sure whether your case is based on
culpa contractual or culpa aquiliana. It’s either one of the two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2 possible
alternative causes of action. I will draft the complaint in such a way that I will show to the court that my cause
of action is either culpa contractual or culpa aquilana. I will make sure that both allegations are covered. You
cannot be wrong because the law does not require you to make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint against you and
you have 3 possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning,
each is my defense or not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging inconsistent. I
told him to look at Section 2, Rule 8 very well. The law allows defendant to plead his defenses hypothetically or
alternatively. He asked, what if they are inconsistent with each other? I said, you look at SC decisions. The SC
said a party may plead 2 or more causes of action or 2 or more defenses alternatively. They may
be inconsistent with each other but what is important is each defense is consistent in itself.
Meaning, each defense, when taken alone, is a good defense. You look at them separately. Do not
compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is that
the defendant obtained a sum of money by way of loan and never paid it. Here is defendant’s
answer:
a.) “That is not true. I never borrowed any money from the plaintiff.” That is a defense of
denial.
b.) “Assuming that I received money from the plaintiff, that money was not a loan but plaintiff’s
birthday gift to me.” In other words, it was a donation.
c.) “Assuming that the money I received from the plaintiff was really a loan. However, such
amount was completely paid.” Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other but
it should not be taken against the defendant. What is important is that each defense is consistent in itself.
Look at them separately. That is also called a “SHOTGUN ANSWER”. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based on evidence. The
problem is that you choose one but it turned out that a different defense would be correct. Hindi mo na
magamit. There is a prejudice because during the trial, I will choose among them with the evidence I have.
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Anyway, pleading man lang yon. I can abandon the others. And that is even better because you might confuse
the plaintiff of what really is your defense. Thus, a lawyer should not be afraid to hypothetically or alternatively
plead defenses which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best one
rather than not stating it in the pleading and during the trial you waive the best defense because
according to the next rule, Rule 9, defenses or objections not pleaded in the answer are deemed
waived.
Take note that you have to correlate this topic on the related provisions we have already taken up: For
EXAMPLE:
1.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or
otherwise, as many causes of action;
2.) Rule 3, Section 6 – on permissive joinder of parties. When may 2 persons or more be
joined as plaintiffs or defendants and how are they joined? They are joined jointly,
severally, or alternatively; and
3.) Rule 3, Section 13 – on alternative defendants. When you are uncertain who is the real
defendant, you may join them alternatively although the relief against one may be
inconsistent with the other.
Remember this provisions because they are interrelated. Thus, when you study the Rules, don’t limit
yourself to a particular provision. Look for other related provisions so you may see the entire picture. That’s
called co-relation – “You don’t only see the tree but the entire forest.” This is very helpful in the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or do you
need to be specific? How do you allege your ultimate facts? Is it in particular or general terms?
A: It depends on what matters you are alleging in your complaint – whether is a condition precedent,
capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment of the
performance or occurrence of all conditions precedent shall be sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already been complied
with. Can you still remember, one of the elements of a right of action is that before you can go to court, you
must comply with all the conditions precedent?
Q: When you allege compliance with the conditions precedent, is it necessary for you to be specific what are
those conditions precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all
conditions precedent shall be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of administrative remedies.
Where a law provide for the exhaustion of administrative remedies, court should not entertain cases without
complying said remedies first. If the rule on exhaustion of administrative remedies is violated, do you think
your case will prosper? NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied for homestead.
May kalaban ka. Where will you file first? Bureau of Lands. You may then appeal to the Secretary of
Agriculture. From the Secretary of Agriculture, you may go to the Office of the Presidential who can reverse
the decision of the secretary. Now, talo ka pa rin but you believe there is a good ground to reverse the
decisions in the executive department, you can now go to the court. That is called the doctrine of judicial
review of administrative decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have not yet complied
with conditions precedent before filing the case. And the condition precedent is that you must comply with the
rule on exhaustion of administrative remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court. Definitely, I will
allege that I have already exhausted remedies in the executive level. Is that allegation sufficient? “I have
already exhausted my remedies in the administrative level.” Do I have to emphasize - “I started with the
Bureau of Lands. From there, I went to Department of Agriculture. From there, I went to the Office of the
President”?
A: According to Section 3, a general averment will be sufficient. You need not specifically
allege compliance of conditions precedent.
Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to be sued or the
authority of a party to sue or to be sued in a representative capacity or the legal
existence of an organized association of persons that is made a party, must be
averred. A party desiring to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a representative capacity, shall do so
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by specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must have capacity
to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to be
sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to
sue and be sued must be averred with particularity. A general statement of it is not sufficient. As a
matter of fact, that is the first paragraph of a complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a
resident of Davao City…” There is no presumption of capacity or incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a representative party – to sue and be sued in
a representative capacity. Can you say, “I am suing as a guardian?” NO. Neither can you say, “I am appointed
as the guardian.”
Q: How should it be done?
A: “I am the court’s appointed guardian of the plaintiff minor having been afforded guardian by the court in
this case based on an order.” You have to emphasize that the court appointed you.
Section 4 says, “the legal existence of an organized association of persons that is made a party...” It means
that the defendant is a corporation existing by virtue of the Philippine Corporation Law. There is no
presumption that you are corporation. That is the reason why facts showing capacity to sue and be sued, etc.
must be averred with particularity.
There’s a case which you will study in Corporation Law whether a foreign corporation can sue in Philippine
court. Under the law, it can sue provided it is licensed to do business in the Philippines. The SC emphasized
that if a foreign corporation is suing somebody in Philippine courts, the complaint must specifically allege that a
foreign corporation is doing business in the Philippines with a license to do. Otherwise, it cannot sue. Yaan!
“A party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do so by
specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge…” (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I will deny
your capacity to sue. I will deny that you are a corporation licensed to do business in the Philippines. Now, the
law requires me to deny your legal capacity and I must state the reason or basis of such denial – why you are
not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you question the legal existence of
a party or the capacity of any party to sue and be sued, you shall do so by specific denial which
shall include such supporting particulars as are peculiarly within the defendant’s knowledge. You
cannot plead a general statement that you deny. Your denial must be particular. You must be
more specific about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of fraud or mistake,
the circumstances constituting fraud or mistake must be stated with particularity.
Malice, intent, knowledge or other condition of the mind of a person may be
averred generally. (5a)
EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was secured through fraud
and plaintiff files a case that the defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A:
No, because the circumstances constituting fraud or mistake must be stated with
particularity. The complaint must state how the fraud was committed. It must be described in
detail how the fraud took place.
Q: In the second sentence, why is it that malice, intent, etc. may be averred generally?
A: A general averment of malice or intent suffices because one cannot describe or particularize
what is in the mind of a party. I cannot describe in detail the malice or the knowledge in your mind.
I can only say it in general terms.
Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not only in the mind.
Those are manifested by external acts. Therefore, one can describe how a fraud was committed by the other
party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic or foreign
court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver
the judgment or decision without setting forth matter showing jurisdiction to render
it. (6)
Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata to dismiss a
case.
Q: Suppose you will ask the court to dismiss the case because there was already judgment rendered by the
court years ago and you simply says, “There was a previous judgment.” Is this sufficient?
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A: YES because the law presumes that the judgment is valid. And the presumption is that the
court had jurisdiction. You do not have to say that the court had jurisdiction over the subject
matter, issues, etc. when it tried the case years ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an official document or official act, it is
sufficient to aver that the document was issued or the act done in compliance with
law. (9)
One can just plead the existence of a document made by the government. EXAMPLE: official letter of the
President, or official communication by a government agency. It is sufficient to aver that the document was
issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?
A: The following: CMJO
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?
A: The following: CLF
1.) Rule 8, Section 4, first sentence – Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence – Legal existence of any party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document. Whenever an action or defense is based
upon a written instrument or document,
1. the substance of such instrument or document shall be set forth in the pleading, and the original or a
copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the
pleading, or
2. said copy may with like effect be set forth in the pleading. (7)
Not every document that is needed in trial is actionable document.
Q: What is an actionable document?
A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation of the cause of action or
defense and not merely an evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric Film Exchange, 58
Phil. 736) It is the very heart and soul of your cause of action or defense, not merely an evidence thereof.
So a promissory note to collect an unpaid loan is not only an evidence of you cause of action
but is it is the very cause of action or foundation of your cause of action. On the other hand, when I
have a receipt, the receipt is not only evidence of your defense but is the very foundation of your
defense. If I would like to sue you to annul a written contract, the contract to be rescinded or
annulled is the very cause of your action.
But in a collection case, if aside from promissory note I wrote you several letter of demand to
pay. Such letter while they are relevant to the collection case, that is not the foundation of your
cause of action, although they are also important.
Q: What is the purpose of the distinction between actionable and non-actionable document?
A: If the document is not actionable, there is no need to follow Section 7. If it is actionable, it must be
pleaded in the manner mentioned in Section 7. Also in Section 8, it is needed to contest the genuiness of the
document.
Q: And how do you plead an actionable document under Section 7?
A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the pleading and
the original or a copy thereof shall be attached as an exhibit.
2.) The copy of the document may with like effect quoted in the pleading in which case,
there is no need to attach the copy.
In the first one, there is no need to copy it. Just mention the substance or features of he promissory note.
The entire document must be quoted in the pleading.
EXAMPLE:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later than one year from
date with 2 percent per annum.
Signed: “A”
Q: Using the above promissory note, how should the pleading be worded?
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A: Two ways of pleading of actionable document:
1.) The substance shall be set forth in the pleading and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be deemed as part of the pleading.
Party simply cites only important parts of the document, then attached the document.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;
2. Sometime in December 31, 1997, defendant A secured a loan from plaintiff B
for a sum of P1 million payable not later than December 31, 1998 with 2%
interest per annum. Copy of said Promissory Note hereto attached as EXHIBIT
A;
3. The account is now overdue and despite demands of defendant A still failed
to pay B xxx.
So, the main features of the promissory note are recited in your pleading – the date when the loan was
secured, the amount, the interest, etc. But still you have to attach a copy of the promissory note, either
xerox copy or the original.
2.) Said copy may with like effect be set forth in the pleading. Document is quoted verbatim.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;
2. On Dec. 31, 1997 def. A secured a loan from plaintiff B which is covered by a
promissory note worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later
than one year from date with 2 percent per annum.
Signed: “A”
3. The account is now overdue and despite demands of defendant A still failed
to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need to attach a copy of the promissory note.
That is the second way.
Now, if the document is not classified as actionable, then there is no need to follow Section 7. Just imagine
if you will apply Section 7 to all documents in your possession. If you intend to present in evidence 50
documents and only one is actionable, ang 49 hindi, so you will have 49 annexes. So, ang pleading mo,
kakapal. (parang mukha mo!)
Q: Suppose in the first way, the promissory note was not attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the complaint
for violation of the rules, if such document could not be secured.
If an actionable document is properly pleaded in your pleading in the manner mentioned in Section 7, the
adverse party is now obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an action or defense is founded upon a
written instrument, copied in or attached to the corresponding pleading as provided
in the preceding section, the genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party,
1.
2.
3.
under oath,
specifically denies them, and
sets forth what he claims to be the facts;
but the requirement of an oath does not apply when the
1.
2.
adverse party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the original instrument is refused. (8a)
Q: Does every pleading have to be under oath?
A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8.
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EXAMPLE: If the plaintiff sues you based on a promissory note which is properly pleaded under Section 7
and you would like to contest the genuineness and due execution of the note like when the figure was altered to
P20,000 instead of P1,000 only, so there is falsification, then you must deny the genuiness and due
execution in your answer specifically and most importantly your answer must VERIFIED AND
UNDER OATH.
If the denial is not verified and under oath, the genuineness and due execution of the
promissory note is deemed admitted.
Q: When you say “you have admitted the genuiness and due execution of the document,” what are the
specific facts that you have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476):
1.) The party whose signature it bears signed it;
2.) If signed by another, it was signed for him and with his authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy Regina wanted to borrow money from him.
Paul agreed. Maya signed the promissory note: “Regina as principal, signed by Maya.” But actually,
Regina never ordered Maya to use her (Regina’s) name. When the note fell due without payment, Paul
sued Regina. Regina denied agency but failed to verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So, the defense of unauthorized
signature is automatically out.
3.) 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;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a promissory note. Mr. Tiamzon admitted
liability but only to the amount of P5,000. Mr. Tiamzon used falsification as a defense but his answer was
not verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory note – that it was really P50,000.
4.) The document was delivered; and
5.) The formal requisites of law, such as seal, acknowledgement (notarization) or revenue
stamp which it lacks, are waived by it.
So kung may konting diperensiya like there is notarial seal, no acknowledgment, no revenue stamp, all
these defects are deemed cured.
The SC said in HIBBERD that if you admit the genuineness and due execution of the actionable
document, defenses which are inconsistent with genuineness and due execution are deemed
automatically waived. Meaning, any defense which denies the genuineness or due execution of the
document is deemed automatically waived.
Q: What are the defenses which are no longer allowed once you admit the genuineness and due execution
of the actionable document?
A: The following:
1.) The signature appearing in the document is a forgery;
2.) In case it was signed by an agent in behalf of the corporation or partnership, or a
principal, the signature was unauthorized;
3.) The corporation was not authorized under its charter to sign the instrument;
4.) The party charged signed it in some other capacity than that alleged in the pleading;
and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
Q: Does it mean to say that when you admit impliedly the genuineness and due execution of the actionable
document, you have no more defense?
A: NO. What are no longer available are defenses which are inconsistent with your own admission of the
genuineness and due execution of the actionable document like forgery, because you cannot admit that the
document is genuine and at the same time allege that it is forged. According to the SC in HIBBERD, you may
still invoke defenses provided the defenses are NOT inconsistent with your admission of the authenticity of the
document.
Q: What defenses may be interposed notwithstanding admission of genuiness and due execution of an
actionable document as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.)
imbecility
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Now, if you do not verify you denial, there is already an advantage in my favor. So you cannot
anymore interpose the defense of for example, forgery because that is inconsistent with your own
admission of the genuineness and due execution of the actionable document. But what if the you
presented evidence to prove forgery? Can I waive the benefit of implied admission?
Q: May the benefit of the admission of genuineness and due execution of an actionable document? If so, in
what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuiness and due execution and the
adversary proved, without objection, the contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution. (Legarda
Koh vs. Ongsiaco, 36 Phil. 185)
In other words, the lawyer of the defendant does not remember Section 8 and therefore the denial is
improper. But the lawyer of the plaintiff did not also remember Section 8 that when there was evidence of
forgery, he failed to object. So, the incompetence of the both lawyers cancel each other. That is what happens
if the lawyer does not know. Bobo! Maayo pa ang bulalo, naay utok!
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the instances where the denial of the genuineness
of the document, which is not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a contract entered by them. But
before Ms. Guadalope filed the case, Ms. Castillo died (simba ko!… tok-tok!). So Ms. Guadalope filed
against the heirs. The heirs realized that the signature of Ms. Castillo in contract as forged. Even if
the answer of the heirs is not under oath, they can still prove forgery because they are
not party to the instrument.
2.) When compliance with an order for an inspection of the original instrument is refused;
3.) When the document to be denied is not classified as an actionable document but merely
an evidentiary matter. This is because when the document if not actionable, there is no
need to follow Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable document for his defense. He
claims to have paid the loan and have attached a copy of the RECEIPT to his answer. The plaintiff looks at the
document and realizes that his signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically under
oath
Q: In what pleading should the plaintiff file where he will deny under oath the genuiness and due execution
of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the receipt is
impliedly admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional. How do we
reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a
specific provision that applies only to actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable document and plaintiff will deny
the genuineness and due execution of such document.
SPECIFIC DENIAL
We will relate Section 10 with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be negative or affirmative.
a. A negative defense is the specific denial of the material fact or facts alleged
in the pleading of the claimant essential to his cause or causes of action.
xxx
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in the
complaint by stating the facts and the reason/s on which his denial is based.
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Q: How is a specific denial done?
A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each material allegation of fact
the truth of which he does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he shall specify so much of it
as is true and material and shall deny only the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this shall have the
effect of a denial. (10a)
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation of fact the truth
of which he does not admit and, whenever practicable, shall set forth the substance
of the matters upon which he relies to support his denial
Meaning, you deny the allegation in the complaint but you must state the basis of your denial –
that, that is not true because this is what is true. So you state your own side, your own version. The
purpose there is to lay your cards on the table to make it fair to the other side. Yaan!
Q: What happens if a denial violates this first mode? Meaning, the pleader did not set forth the substance of
the matters relied upon to support his denial.
A: That is know was GENERAL DENIAL and it will have the effect of automatically admitting the
allegations in the complaint.
Q: Suppose the pleader will say, “Defendant specifically denies the allegations in paragraph 2,4,7…”
without any further support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word ‘specific.’ (Cortes vs. Co Bun
Kim, 90 Phil. 167) What makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material and shall deny only the
remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit part 1 but part 2
is denied. Or, the substance of the allegation is actually admitted by the qualification there is denied.
EXAMPLE: Plaintiff alleges that the “Defendant is in possession of the property under litigation in bad faith.”
Now, the defendant may admit that the property is in his possession but he denies the qualification in bad faith
– possession is not in bad faith. Based on that, the defendant should say, “Defendant admits that portion of
paragraph no. 2 that he is in possession of the property in question; but denies that he is a possessor in bad
faith” or something to that effect.
Therefore, when you say “I deny the entire paragraph” when actually you are not denying the
entire paragraph but only the qualification, that is called a NEGATIVE PREGNANT. Actually, in the
legal point of view, what is only denied is the qualification to the averment. The substance of the
allegation is actually admitted.
THIRD MODE: Where a defendant is without knowledge or information sufficient
to form a belief as to the truth of a material averment made in the complaint, he
shall so state, and this shall have the effect of a denial
Meaning, I am not in a position to admit or to deny because I have no knowledge. How can I admit or deny
something which I do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his reputation. Defendant does
not know that Plaintiff had sleepless nights, wounded feelings, serious anxiety, etc. Here, Defendant cannot
admit or deny those.
I have read pleadings where the pleader would say, “Defendant has no knowledge or information sufficient
to form a belief as to the truth of the allegation in paragraphs 6, 7, 8, 9… of the complaint and therefore he
denies the same.” Actually, there is something wrong there. How can you deny something that you have no
knowledge of. Just state, “I have no knowledge.” Then period! And is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be done in good faith. If the fact
alleged is such that it is within your knowledge, it is impossible that it is not within your
knowledge, you cannot avail of the third mode of denial. Otherwise, if you will avail of the third
mode in bad faith, your denial will be treated as an admission. That is what happened in CAPITOL
MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, “Defendant borrowed money from plaintiff in the
sum of P10,000 payable one year from said date.” And then you say, “I have no knowledge or information…”
There is something wrong there. What you are trying to say there is “I do not know whether I borrowed money
from you or not.”
How can that be? It is either you borrowed money or you did not! That is why the SC said in CAPITOL
MOTORS, if you borrowed money, you say so. And if you did not, deny it. And then I will allege there, “The
defendant have made partial payments.” Then you will say, “I have no knowledge.” My golly! You do not even
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know whether you paid me? In other words, talagang evasive bah! You are trying to be clever and evasive. And
if you do that, all your denials will be treated as admissions. That is the warning in the third mode.
Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the
complaint, other than those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this rule extends to counterclaims, cross-claims
and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the complaint and was
not specifically denied, it is deemed admitted. However under Section 11, there are averments in the complaint
which are not deemed admitted even when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not
specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even when
not specifically denied:
1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver ultimate facts; (Agaton
vs. Perez, L-19548, Dec. 22, 1966)
4.) Conclusions of facts or law.
Let’s discuss the first exception – AMOUNT OF UNLIQUIDATED DAMAGES is not deemed admitted
even if not specifically denied. So if the damages are liquidated, they are deemed admitted.
Examples of unliquidated damages are moral and exemplary damages. Or expenses which I
incurred in the hospital. Those are unliquidated damages. They are always subject to evidence. You
have to prove how much amount you are entitled to. That is why they are not deemed admitted
even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or besmirched reputation, and I did not
specifically denied such claim, it does not mean that you are automatically entitled to P1 million. Hindi yan
puwede. You have to present evidence that you are really entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an obligation with a penal clause. For example in
our contract, it is stipulated that in case you cannot comply with your obligation, you will pay me P1 million. So
if you failed to specifically deny it, then you are deemed to have admitted that I am entitled to P1 million. There
is no need for computation because the amount is already in the contract beforehand. The contract itself would
show how much I am entitled.
Section 11 also says, “Allegations of usury in a complaint to recover usurious interest are deemed admitted
if not denied under oath.” Usury means you charge interest above the legal interest provided by the usury law.
If you want to deny my charge of usury, your answer must be under oath. So, this is the second instance where
a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM LAW vs. OLYMPIC SAW
MILL (129 SCRA 439), that usury is no longer existing and the SC stated in that case that the provision of the
Rules of Court in usury are deemed erased or superseded. Obviously, the SC forgot what it said in the 1983.
(Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon motion made by a
party before responding to a pleading or, if no responsive pleading is permitted by
these Rules, upon motion made by a party within twenty (20) days after the service
of the pleading upon him, or upon the court's own initiative at any time, the court
may order any pleading to be stricken out or that any sham or false, redundant,
immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a pleading or a portion of a pleading.
Striking a pleading means that the pleading will be deemed erased as if it was never filed. Or if a portion of the
pleading be ordered stricken out or expunged where a pleading or a portion thereof is sham or false, redundant,
immaterial, impertinent, or a scandalous matter is inserted in the pleading, is deemed erased. This is related to
Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x
An unsigned pleading produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was
due to mere inadvertence and not intended for delay. Counsel who deliberately files
an unsigned pleading, or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate disciplinary action.
So, if your pleading contains scandalous or indecent matters, the lawyer who files it may be subjected to
appropriate disciplinary actions.
Q: What if it is the reply is the one which contains scandalous matter?
A: A motion to strike may still be filed by the defendant within 20 days after the reply.
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Rule 9
EFFECT OF FAILURE TO PLEAD
General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS OR
IN THE ANSWER ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the
EXC:
1. court has no jurisdiction over the subject matter,
2. that there is another action pending between the same parties for the same cause,
3. or that the action is barred by a prior judgment or
4. by statute of limitations, the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are deemed
waived. If you do not plead your defense, the same is deemed waived. The court has no jurisdiction over the
issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in your answer. But
during the trial, you attempted to prove that the loan has already been paid. Now, that cannot be done because
the defense of payment is deemed waived because you did not raise it in your answer. In other words, the court
never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to
surprise the plaintiff during the trial by not raising your defense in your answer, you will be the one who will be
surprised because the court will not allow you. When the parties go to court, the plaintiff already knows what
are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are not
raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause (litis
pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or even for the
first time on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that, when there is a
defect in the jurisdiction of the court over the subject matter, the defect can be raised at any stage of the
proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything is null
and void. Jurisdiction over the subject matter cannot be conferred by agreement between the parties, by
WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the same parties for
the same cause. That is actually splitting a cause of action because there is already an action and then you file
another action. The action can be dismissed on the ground that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case regarding the same
issue. That is also splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: “The rule on waiver of defenses by failure to plead in the answer or in a motion to
dismiss does not apply when the plaintiff’s own allegations in the complaint show clearly that the
action has prescribed in such a case the court may motu propio dismiss the case on the ground of
prescription.”
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Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to dismiss?
A: YES. It would seem so because the second sentence says, “When it appears from the
pleadings or the evidence on record … the court shall dismiss the claim.” (This is an important
change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before
judgment is failure to state a cause of action, but it disappears under the new rules. Does it mean to say that
you cannot raise it anymore? NO. It can still be raised because it can be taken care of by another rule – Rule 33
on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory
counterclaim, or a cross-claim, not set up shall be barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to
the defending party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer the complaint within the time
allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15
days to file an answer counted from the time you are furnished a copy of the complaint together
with the summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare the defendant in
default on the ground of failure to file an answer to the complaint. So, the court will issue an order of
default declaring you as a defaulted defendant.
And from the time a party is declared in default, he loses his standing in court, although he is
still entitled to notice of subsequent proceedings. He cannot participate in the trial. He cannot
object to plaintiff’s evidence. He cannot present his own evidence. In effect, the case will be
decided only on the basis of plaintiff’s side without anymore hearing the defendant. And of course,
the plaintiff will win. It is like a boxing bout ba where the rule is, isa lang ang mag-suntok. My golly! How can
you win in that situation? That is the effect of default.
Take note that the word ‘defending’ party applies not only to the original defendant but even to
the cross-defendant or defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion?
A: NO, because the law says, “upon motion of the claiming party.”
Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the
defending party of your motion to order the defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be declared in
default?
A: NO, because the ground for default is failure to file an answer. The correct procedure is for
the trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you
call EX-PARTE reception of evidence. Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to have
admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to render judgment granting such
claimant such relief as his pleading may warrant.” The reception of plaintiff’s evidence is already
dispensed with. Wala ng reception of evidence. That is the GENERAL RULE. That is the same as the
summary rules and judgment on the pleadings and the court can grant the relief without
presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit
evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of
evidence may be delegated to the clerk of court. This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the
court where the case is pending shall personally receive the evidence to be adduced
by the parties. However, in default or ex parte hearings, and in any case where the
parties agree in writing, the court may delegate the reception of evidence to its clerk
of court who is a member of the bar. The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the transcripts within ten
(10) days from termination of the hearing. (n)
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The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a lawyer,
that is the condition. So if he is not a member of the bar, he is not authorize to conduct or hear an ex -parte
reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within the time allowed:
1.) Motion to declare defendant in default;
2.) Order of default;
3.) Judgment based on the complaint of the plaintiff UNLESS court requires the claimant
to submit evidence (ex-parte presentation of plaintiff’s evidence)
However, when should the court dispensed with the ex-parte presentation of evidence and when should it
require the claimant to submit evidence being discretionary? May ibang judges who likes kapoy na, judgment
kaagad! May iba naman, reception muna which will take time. In my personal view, cases which are simple,
presentation of evidence ex-parte can be dispensed with like collection cases ba. Walang laban ang defendant
talaga.
But in controversial cases, like recovery of a piece of land – medyo mahirap yan. The judge will not
automatically decide in your favor simply because of failure to answer by the defendant. The judge may still
want to hear plaintiff’s evidence. To my mind, that should be the policy regarding this rule.
Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the plaintiff
move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in accordance
with the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a
copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS
187 SCRA 153
HELD: “The failure to furnish a copy of the answer to the adverse party in itself is
sufficient or valid basis for defendant’s default.”
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill of
particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars interrupts
the running of the period to answer. It will run again from the moment he receives the order
denying his motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss did not
contain notice of time and place of hearing and the motion was denied. Can he file an answer after
filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no legal
effect.
“Any motion that does not comply with Rule 16 should not be accepted for filing and
if filed, is not entitled to judicial cognizance and does not affect any reglementary
period. Not having complied with the rules, the motion to dismiss filed by the defendant
did not stay the running of the reglementary period to file an answer.”
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP.
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the defendant filed a motion to
dismiss on the 8th day. It was denied. So there is still 7 days to file an answer. On the 15th day,
instead of filing an answer, he filed a motion for reconsideration and the such motion was denied.
Then he filed an answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period to file an answer.
When you receive an order, you still have the balance to file your answer. And you did not file an
answer instead, you file a motion for reconsideration. You took the risk. So defendant’s motion for
reconsideration which merely reiterated his ground in the motion to dismiss did not stay the running
of the period to file an answer.
(a) Effect of order of default. - A party in default shall be entitled to notice of
subsequent proceedings but not to take part in the trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing, you cannot crossexamine the witness of the plaintiff assuming there is a reception of evidence. You cannot object to his
evidence. You cannot even present your own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which
abrogates the old rule. Under the old rules, you are not entitled to service of notice, orders, except
substantially amended pleadings, supplemental pleadings, final orders or judgments or when you file a motion
to set aside an order of default.
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But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing in court but
for the purpose of notice, you are entitled to service of every motion, every pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at any time after
notice thereof and before judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious defense. In such case,
the order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?
A: One remedy under Section 3 paragraph [b] is that, provided there is still no default
judgment, he can still file a motion to set aside the order of default upon a proper showing that his
failure to answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable negligence) and that
he has a meritorious defense. [The discussions on FAME is in Rule 37 – New Trial or
Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not lift the
order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no chance for you to
win anyway. But if you have a meritorious defense, there is no guarantee that you will win but at least you
have a fighting chance ba that your standing will be restored.
Upon proof, the court will set aside or lift the order of default and will give the defendant an opportunity to
answer, where he will plead his supposed meritorious defenses. In effect, he regains his standing in court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any time after notice thereof and
before judgment.
SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified and
under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim states a common
cause of action against several defending parties, some of whom answer and the
others fail to do so, the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented. (4a, R18)
This presupposes that there are two or more defendants. Say, one or some of the defendants made an
answer and the others did not. So, one or some of the defendants were declared in default, the others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was declared in
default but there can be no judgment against Bayani in the meantime because under paragraph [c], the case
will go to trial based on the answer of Bentong. The case will be tried against both Bentong and Bayani based
on the answer of Bentong.
The principle here is that, the answer filed by the answering defendant will automatically
benefit the non-answering defendant. The defense of Bentong will also be Bayani’s defense. Anyway there
is a common or identical cause of action. The best example would be a promissory note signed by both Bentong
and Bayani and they bound themselves solidarily. Both of them were sued. Bentong answered while Bayani did
not, hence he is in default. Can there be a default judgment against Bayani? NO, there will still be a
trial based on the answer of Bentong. In effect, Bentong will defend not only himself but also
Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is also
applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his co-defendant
Bentong. Hence, there is still a possibility that a defaulted defendant can win based on our example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant. EXAMPLE:
Gary filed a case against Bentong and Bayani based on a promissory note on a loan secured by both, and
Bayani defaulted. Bentong answered alleging payment. Suppose, Bentong proved such defense, the effect is
both Bentong and Bayani are absolved. If you say that Bayani should lose because the answer of Bentong will
not benefit Bayani, there will be two conflicting decisions: “Bayani is in default and thus, should pay the loan;
and there is no more loan as far as Bentong is concerned.” Do you mean a loan is paid and at the same time
unpaid? That’s absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If there is
no cause of action, while there may be a trial, the answer of Bentong is only for him. After the trial,
Bentong might be absolved from liability but the defaulting defendant Bayani will be held liable because
Bentong’s answer does not cover Bayani. That is when there is no common cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])
reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
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FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced by a
promissory note. Bentong filed an answer but Bayani defaulted. The case was tried based on
Bentong’s answer. Gary move to drop Bentong from the case but retained Bayani, the defaulted
defendant so that Gary can secure an immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants, if you
drop the case against one, you drop the case against all. Selection is not allowed. To drop
Bentong means that the cause of action against him is weak. Why should one drop somebody if a
case against such person is meritorious? If such is the fact, necessarily the cause of action against
the other is also weak the fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]
239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck causing injury
to Imson and totally wreaking his car. So he filed an action for damages against several defendants.
He impleaded all of them – the driver, the bus company owner and the insurance company . The
insurance company filed an answer but the owner and the driver did not. So both the owner and the
driver were declared in default.
Subsequently, lmson and the insurance company entered into a compromise agreement
wherein the latter paid him P70,000 which was its total liability under the insurance contract. The
claim was very big so the insurance company offered to give the amount, “Bahala ka sa sobra.”
So when the case (between Imson and the insurance company) was eventually dismissed
because of the compromise agreement, the bus company owner also moved to dismiss the case
against him and the driver, arguing that since they are all indispensable parties under a common
cause of action, the dismissal of the case against the insurance company should likewise result to
the dismissal of the case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of action
against the driver is based on quasi-delict under Article 2178 of the Civil Code. The
liability against the owner is also based on quasi-delict but on another provision of the
Civil Code – Article 2180 (the liability of the employer for the delict or wrong of the
employee) So, the liability of the owner and the driver is based on quasi -delict but
under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on quasi-delict
but based on contract because he seeks to recover liability from the insurance company
based on the third-party liability clause of the insurance contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is
removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
“It is true that all of Imson’s claims in civil case is premised on the wrong committed by
defendant truck driver. Concededly, the truck driver is an indispensable party to the suit. The other
defendants, however, cannot be categorized as indispensable parties. They are merely necessary
parties to the case. It is easy to see that if any of them had been impleaded as defendant (meaning,
the insurance company or the owner were impleaded), the case would still proceed without
prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the omission would not cause the
dismissal of the suit against the other defendants. Even without the insurer, the trial court would
not lose its competency to act completely and validly on the damage suit. The insurer, clearly, is
not an indispensable party.” It is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a party in default
shall not exceed the amount or be different in kind from that prayed for nor award
unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the
complaint;
3.) The default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to
present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award P500,000
claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default
judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the
complaint although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
108
What is the reason behind this? You have to know the philosophy on default to understand the reason
behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that he
was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file an
answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good defense, and that
the claim is fair. And if he will make an answer, still he will not win and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another beyond his
control, he failed to file his answer.
Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed to file an
answer, what is the remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond
one’s control – fraud, mistake, accident, or excusable negligence (FAME) and that there is a
meritorious defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the
contingency is paragraph [d] – rest assured that the judgment will not exceed the amount or be different in kind
from that prayed for. At least, you will not be surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I allowed
myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs could increase.
And then during the trial, you proved that the damages were in fact P2 million. So, when I received the
judgment it was already P2 million when the complaint was only for P200,000. Now, if you knew that would be
the case, then you would have fought it out. In other words, its unfair. Hence, the reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will be
ordered.
MANGELIN vs. COURT OF APPEALS
215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by virtue of default
judgment AND ex-parte presentation of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies – the
judgment cannot exceed the amount or be different in kind from that prayed for in the
complaint.
BUT if there’s an ex-parte reception of evidence against a defendant who filed an
answer but FAILED TO APPEAR during the trial, the limitations in paragraph [d] does not
apply. Therefore in this case, a greater amount than that prayed for in the complaint, or
a different nature of relief may be awarded so long as the same are proved.
“It may be pointed out that there is a difference between a judgment against a defendant based
on evidence presented ex-parte pursuant to a default order and one based on evidence presented
ex-parte and against a defendant who had filed an answer but who failed to appear at the hearing.
In the former, Section 3 [d] of Rule 9 provides that the judgment against the defendant
should not exceed the amount or be different in kind from that prayed for. In the latter,
however, the award may exceed the amount or be different in kind from that prayed
for.”
This is because when there is an ex parte presentation of evidence due to failure to appear in
trial, one’s standing in court is not lost. HE can still present evidence later to refute the plaintiff’s
evidence. He simply waived the rights attached on particular hearing but not to all subsequent
trials. In judgement by default, he actually loses his standing in court.
They added new (third) limitation – Unliquidated damages cannot be awarded in default judgment.
Obviously liquidated ones can be.
Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly
be awarded such as the presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the
same are not required. An example is an obligation with a penal clause like an agreement to
construct a house and upon failure to finish the same within a stipulated period, the contractor is
liable for P10,000 for every day of delay. The amount is already fixed based on the contract price
and the penalty provided and such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is wrong
here. Last September 1997 during the BAR exams, the secretary of the committee which drafted this, the
former clerk of court of the SC, Daniel Martinez asked for comments on the New (1997) Rules. I told him about
the new Rules on Default, asking him who placed the provision there. He said it was Justice Feria’s idea.
J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages.” But I
said that there is something wrong here. For EXAMPLE: You filed a case against me na puro damages –
109
compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my strategy now would to have
myself declared in default because anyway, those unliquidated damages cannot be awarded by default.
In other words, they have placed the defaulted defendant in a better position when he will file an answer
because if he files an answer and goes to trial, he might lose. So, if he allows himself to be defaulted, the court
can never award the damages. This is the effect of the new limitation. That is why I’m against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can never award those
damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply because
there is no way for the court to award the damages. And most damages are usually those unliquidated
damages.
(e) Where no defaults allowed. - If the defending party in an action for annulment or
declaration of nullity of marriage or for legal separation fails to answer, the court
shall order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of nullity
of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not encourage breakups.
Now, in the absence of this provision, husband and wife quarrels and then they decide to separate. Wife will
file a case for legal separation with the agreement that the husband will not answer. Being in default, there will
be a judgement in default and in a month’s time marriage will be severed for the meantime. The provision then
prohibits default in marital relations cases to preserve and uphold public policy.
Q: What if the party did not really file an answer?
A: The court is bound to find out whether there is a collusion between the parties – whether the act is
deliberate without agreement. We already know that there should be presentation of evidence. And the law
requires the State to intervene. The fiscal is responsible to see to it that the evidence is not fabricated, the
same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of absolute nullity
of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.
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Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by adding or striking
out an allegation or the name of any party, or by correcting a mistake in the name of
a party or a mistaken or inadequate allegation or description in any other respect, so
that the actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive manner. (1)
What do you understand by amendment? The general meaning of amendment is change. Now can we
amend pleadings, change it? Yes.
Q: How do you amend a pleading?
A: Well, any type of change – you can add a word or a sentence or you strike out an allegation or you add or
strike out a party; you correct a mistake in the name of a party or inadequate allegation or description in any
other respect. As a matter of fact, if you correct only one letter, that is already an amendment.
So you can amend by removing something, adding something, or changing something by substituting
another word. You can amend by removing an entire paragraph, an entire sentence, a phrase, or a word. So
that is what amendment is all about. As a matter of fact, before reaching Rule 10, there are provisions where
amendments have already been touched upon, one of which is Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil action is commenced by the filing of the
original complaint in court. If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him on the date of the filing of
such later pleading, irrespective of whether the motion for its admission, if
necessary, is denied by the court.
So in other words, if I file a complaint against A, then later on I will include another defendant, the inclusion
of an additional defendant party is an amendment.
Q: Suppose I will file a case against Jacques today, January 9, then one month from today I will file another
complaint to include an additional defendant, Tikla. When is the case deemed commenced?
A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the case against
him is commenced today. But as far as Tikla is concerned, the additional defendant, the case is commenced not
upon the filing of the original complaint, but on the date when he is included in the amended complaint. So, the
amendment does not retroact to the date of the filing of the original action.
Q: What is the policy of the law on amendments? Should it be encouraged or discouraged? If a party wants
to amend his complaint or answer, should the court be liberal in allowing the amendment or should it restrict,
as a general rule, and not allow the amendment?
A: Section 1 says that the purpose of amendment is that the actual merits of the controversy may speedily
be determined without regard to technicalities, and in the most expeditious and inexpensive manner. According
to the SC, amendments to pleadings are favored and should be liberally allowed in order (a) to
determine every case as far as possible on its actual merits without regard to technicalities, (b) to
speed up the trial of cases, and (c) to prevent unnecessary expenses. (Verzosa vs. Verzosa, L-25603,
Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)
EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later on he realizes
that his cause of action is wrong or that his defense is wrong. He would like to change his complaint or change
111
his answer. All he has to do is amend his complaint or answer. The court cannot stop him from changing his
complaint or changing his answer because the purpose of litigation is: the real nature of controversy will be
litigated in court. You cannot normally stop the party from ventilating his real cause of action or his real defense
so that the rule is that amendments should be liberally allowed in the furtherance of justice and that the real
merits of the case will come out in court. That is what you have to remember about concept of amendments
and the policy of the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under the rules:
1.) An amendment as a matter of right; or
2.) An amendment as a matter of judicial discretion
SECOND, an amendment could be
1.) a formal amendment; or
2.) a substantial amendment
These are the same classification under the Rules on Criminal Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and Amendment as a MATTER OF JUDICIAL DISCRETION
AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional action or right
to amend his pleading. The court has no right to prevent him from amending. The opposite party has no right
to oppose the amendment.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or may not
allow the amendment. So the other party has the right to oppose.
AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment a matter of right?
A: Section 2:
Sec. 2. Amendments as a matter of right. - A party may amend his pleading once as a
matter of right at any time before a responsive pleading is served or, in the case of a
reply, at any time within ten (10) days after it is served. (2a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the amendment a
matter of right?
A: At any time a responsive pleading is served to the complaint. Meaning, at any time before
the defendant has filed his answer, the plaintiff may change his complaint at any time. He may
change it in any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his answer, when is his right
absolute or as a matter of fact right?
A: At any time before a reply by the plaintiff is filed or before the expiration of the period to
file a reply because a reply may or may be not be filed.
Q: How about if you want to amend your reply? You cannot say before a responsive pleading is served
because there is no more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time within ten (10) days after it is
served.
Q: Is there any other instance when amendment is a matter of right even if there is already an answer or
even in the middle of the trial the party can still change his pleading and it seems that the court should allow it?
A: Yes, there is a second instance, when the amendment is FORMAL IN NATURE as found in
Section 4:
Sec. 4. Formal amendments. - A defect in the designation of the parties and other
clearly clerical or typographical errors may be summarily corrected by the court at
any stage of the action, at its initiative or on motion, provided no prejudice is caused
thereby to the adverse party. (4a)
When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be summarily
corrected by the court at any stage of the action, upon motion or even without motion, the court will order the
amendment. Because anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because there is no change in the cause of
action.
SUMMARY: Amendment as a matter of right:
1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires (Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment
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AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
So we will now go to substantial amendments which are a matter of judicial discretion, that is Section 3:
Sec. 3. Amendments by leave of court. - Except as provided in the next preceding
section, substantial amendments may be made only upon leave of court. But such
leave may be refused if it appears to the court that the motion was made with intent
to delay. Orders of the court upon the matters provided in this section shall be made
upon motion filed in court, and after notice to the adverse party, and an opportunity
to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?
A: The amendment must be substantial and the adverse party has already filed and served a
copy of his responsive pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you have filed your
answer, I want to amend my complaint and my amendments is not merely formal but something substantial,
like my cause of action will not be the same anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I will
have to file a motion in court to allow or admit the proposed amended complaint. I will furnish a
copy of the motion to my opponent together with a copy of the amended complaint and the other
party has the right to oppose the amendment. So the court will hear and decide whether to allow
the amendment or not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court resolve it?
Assuming that the argument is 50-50 and the court is deliberating whether or not to allow the amendment.
A: Based on established jurisprudence, the court should always allow the amendment because of
the liberal policy of the rules. Amendments of pleadings should be liberally allowed in order that
the real merits of the case can be ventilated in court without regard to technicalities. So the court
will always lean on allowing a pleading to be amended. That is the liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when can the court
refuse to allow the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer jurisdiction
upon the court (Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing cause of
action (Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be refused if it appears that the motion was
made with intent to delay. Meaning, the motion to amend is dilatory. Example: a case is filed against the
defendant based on a cause of action then trial…trial…then the case is already about to end. Then the plaintiff
says he wants to amend his complaint and change his cause of action. I don’t think the court will allow it.
That’s too much.
Or, the defendant will say that he would like to change his defense. I don’t think the court will agree with
that situation because it appears that the motion to amend is already dilatory. Why did it take you one year to
realize that your cause of action or your defense is wrong? So that is a limitation where the court may refuse to
apply the principles on liberality. The liberal policy becomes weaker or is working against you the longer you
delay your amendment because it might already be interpreted to be dilatory.
Now if you will notice, there is another limitation found in the old rules that is gone here, and that is : That
the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of action or defense (Torres vs.
Tomacruz, 49 Phil. 913) The implication here is that, since amendment is favored, even if you alter you cause of
action or defense, you should not prevent the other party provided that it is not dilatory. And the definition of
this limitation is a confirmation of what the SC said in some cases like the case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: “While the Rules of Court authorize the courts to disallow amendment of pleadings when
it appears that the same is made to delay an action or that the cause of action or defense is
substantially altered thereby, the rule is not absolute.” It is discretionary.
“Courts are not precluded from allowing amendments of pleadings even if the same will
substantially change the cause of action or defense provided that such amendments do not result in
a substantial injury to the adverse party. This is due to the permissive character of said rule [which
provides: “may refuse”]. In fact, this Court has ruled that amendments to pleadings are favored and
should be liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation. But if you are going to change your cause of
action or defense when the trial is almost over, hindi na puwede because that will be dilatory. But if you want to
change it before the trial, that it still allowed, even if it is substantial in nature. That’s why this limitation
disappeared. But despite the fact that there is only one limitation now left, it is conceded that there are still
limitations not found in the law which have remained intact.
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2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER
JURISDICTION UPON THE COURT
In other words, based on the original complaint the court has no jurisdiction over the subject matter. So I
will amend the complaint so that the court will have jurisdiction. Well, that will not be allowed. So,
jurisdiction by the court cannot be conferred by amendment when the original complaint shows
that the court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only. Where
should I file the complaint? MTC. But by mistake I file it in the RTC and later I realized that the case should
have been filed in the MTC because the jurisdiction of the RTC should be above P200,000. So I will amend my
complaint and change the complaint and say that my claim is P100,001.00. The obvious purpose of the
amendment is to make the case fall within the jurisdiction of the RTC. According to the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over
the subject matter, the court has no authority to act in the case. And if you move to amend it and
ask the court to allow the amendment, you are assuming that the court has the authority to act on
the case. But the court can’t allow it because the court has no authority to act. So the court even is
not authorized to allow the amendment because it has no authority to act in the first place. How can
you allow something when you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no
jurisdiction, the court has only one authority and its only authority is to dismiss the case. So with
that an amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NON-EXISTING
CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no
wrong. Now how can you create a delict or wrong by amending your complaint? In effect, you are creating
something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT cause of action?
A: The following are the distinctions:
1.) In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the
defendant (Limpangco vs. Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged in
the complaint, but the cause of action is incomplete (Alto Surety vs. Aguilar, L-5625, March 16,
1945); and
2.) a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10
Phil. 508; Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625, March
16, 1945; Ramos vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the complaint
today so the running of the period will be interrupted. Suppose I will amend my complaint next month, on
February. Question: Is prescription properly interrupted? When an original complaint is amended later, when is
the prescriptive period for filing the action interrupted? Upon the filing of the original complaint or upon the
filing of the amended complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the prescriptive
period is deemed interrupted upon the filing of the amended complaint; (Ruymann vs. Dir.
of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed the original cause of action, no
different cause of action is introduced in the amended complaint, then the interruption
of the prescriptive period retroacts on the date of the filing of the original complaint.
(Pangasinan Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago vs. Mallari, 52 O.G. 180, October
31, 1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months from now
I will amend my complaint from damages arising from culpa aquiliana to damages arising from culpa
contractual. Is that a different cause of action? Yes, so the prescriptive period for culpa contractual is deemed
filed next month, not this month, because that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million. Next month
I amend my complaint for damages from one million pesos to two million pesos. Did I change my cause of
action? No, it is still the same cause of action—culpa aquiliana. Therefore, the prescriptive period is deemed
interrupted as of the date of the filing of the original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same because there is
such a thing as amendments on the criminal complaints or informations as a matter of right on the part of the
prosecution and amendments as a matter of judicial discretion. And under the rules of criminal procedure, an
amendment can either be formal or substantially received. There is some difference in the rules.
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How do you differentiate the amendment of a pleading, under the rules on civil procedure and the
amendment of a criminal complaint or information in criminal cases? Take note that there is no Answer in
criminal cases. The accused is not obliged to file answer but the counterpart of answer in criminal cases is the
plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he enters
plea, the amendment of information is a matter of right, either in form or in substance. EXAMPLE:
The prosecution files an information against you for homicide and then the prosecution wants to agree to
murder. Can it be done? YES, for as long as the accused has not yet entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the amendment is a
matter of right whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is
amendment still allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100%
prohibited in criminal cases. But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of evidence. - When issues
not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform
to the evidence and to raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not affect the result of the
trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may grant a continuance to
enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is
not raised in the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the
issue. That’s why there is no such thing as surprise defense because a defense that is not raised is
deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?
A: YES. Section 5 is a relaxation of the rule specifically the first sentence: “when issues not
raised in 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.”
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money obtained from
the defendants was not a loan but a donation. During the trial, he attempted to prove that it was a loan but it
was already fully paid. So he is now proving the defense of payment. He is practically changing his defense. If
you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove that the obligation
is paid, then it can be done because issues now raised in the pleadings are tried with the express consent of the
parties. They shall be treated in all respects as if they had been raised in the pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove
payment and the plaintiff FAILED TO OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried in the issue as if they had been raised in the pleadings. That
is what we call the principle of estoppel. The parties are in estoppel because they expressly or impliedly
agreed to try an issue which is not raised in the pleadings. The court will now render judgment and discuss the
evidence and discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and the answer,
there is no mention of payment but in the decision resolved the case on that issue. The pleadings are not in
harmony with the decision.
Q: So how will you harmonize the two – pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the pleadings
to make them conform with the evidence. That is why the law says: “such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment.”
So even after the judgment, you can amend the pleading in order to harmonize with the evidence.
Normally, the evidence should conform to the pleading under Rule 9. In this case, baliktad! – it is the pleading
which is being amended to conform to the evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case will be appealed.
The CA will read the complaint and the answer, “wala mang payment dito!” But when you read the decision,
the main issue was payment not found in the complaint and the answer. So there might be confusion. So
amendment is necessary at anytime, even after judgment.
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Q: But suppose the parties never bothered to amend the pleadings, is there a valid judgment?
A: YES because the law says, “but failure to amend does not affect the result of the trial of
these issues.” So, there is a valid trial and the court acquires jurisdiction over the issues because
of their implied or express consent. The best example is FAILURE TO OBJECT.
“if the evidence is objected to at the trial on the ground that it was not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the action and the ends of substantial
justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The lawyer of the
plaintiff is alert and objected thereby, “You cannot prove that defense because you never raise a defense of
payment in your answer.” Is the objection correct? YES because of Rule 9, Section 1. The court affirmed the
plaintiff that one cannot prove the defense of payment because you never raised it in your answer. There is no
express or implied consent.
Q: But the defendant said, “If that is so your honor, may we be allowed to amend our answer so that we
will now raise the defense of payment and prove it in court?” Can the court allow the defendant to amend his
answer in the middle of the trial just to prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For
example, I am the judge and the defendant never raised the issue of payment in his answer and he is now
rising such defense. The plaintiff’s lawyer will now object and alleged that he cannot prove such defense for he
never raised it in his answer. The judge sustained the objection, “You cannot prove a defense that is never
raised in your answer.” Q: Is my ruling correct? A: YES because of Rule 9, Section 1 – objections and defenses
not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that defense. The
plaintiff will object to the amendment. The judge will ask the plaintiff, “is the obligation paid?” “NO. The
defendant never paid it,” answered the plaintiff. So if the defense is false, why are you afraid? Anyway, he
cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but that he never
raised such matter in his answer. The plaintiff now will be in bad faith. So I will allow the amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So the court will
allow the amendment and shall do so with liberality… so LIBERALITY should be the rule on amendment. Section
5 is a rule more on equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a relaxation of that law on
technicality.
The last sentence, “the court may grant a continuance to enable the amendment to be made.”
‘Continuance’ means postponement. It means, postponement of the case to allow the defendant
to amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have
happened since the date of the pleading sought to be supplemented. The adverse
party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings.
Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The following are the
distinctions:
FIRST DISTINCTION: As to the allegations
An AMENDED pleading contains transactions, occurrences or events which already happened at the
time the original pleading was filed and could have been raised at the original pleading, but which the
pleader failed to raise in the original pleading because, oversight or inadvertence or inexcusable
negligence. If he wants to raise it, he must amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in existence
at the time the original pleading was filed but which only happened after the filing of the original pleading
and therefore, could not have been raised in the original pleading.
That is the distinction emphasized in the New Rule – Rule 11,
Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after answer. – A counterclaim
or cross-claim which either matured or was acquired by a party after serving his
pleading may, with the permission of the court, be presented as a counterclaim
or cross-claim by supplemental pleading before Judgment.
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Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a pleader fails to
set up a counterclaim or a cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he may, by leave of court, set up the
counterclaim or cross-claim by amendment before judgment.
These provisions emphasize the difference between an amended pleading and a supplemental pleading –
how do you raise a counterclaim or cross-claim which was not raised earlier? Is it by amending the pleading
or by filing d supplemental pleading ? And that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect
In an AMENDED pleading, the amended pleading supersedes the original pleading. The original
pleading is deemed erased. The amended substitutes the original. So from the viewpoint of the law, the
original pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect, there
are now two (2) pleadings which stand side by side in the case – the original and the supplemental
pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments. Mortz failed
to pay the first installment. Nanding filed a case. While the case is pending, the other installment
became due. Nanding will now file a supplemental pleading and as a result, there will be two (2)
complaints for P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no longer exist
because remember under the rules on Evidence, any admission that you make in your pleading binds
you under the doctrine of judicial admission where the evidence need not be given - as if it is taken
judicial notice of. The rule is, if a pleading is amended and the amended pleading does not contain the
admissions contained in the original pleading, the judicial admission is now converted into an
extra-judicial admission and therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission which is not found there (in the
amended pleading), I have to formally offer in evidence the original pleading. Normally, you do not offer
in evidence a pleading because the court takes judicial notice of everything stated in there. But if the
original pleading is now superseded, the original must be offered in evidence to prove an admission
found in the original but not anymore in the amended one. That principle in now found in Section 8:
Section 8. Effect of amended pleadings. - An amended pleading supersedes the
pleading that it amends. However, admissions in superseded pleadings may be
received in evidence against the pleader; and claims and defenses alleged
therein not incorporated in the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be proved: judicial notice, judicial
admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or of
judicial discretion under Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under Section 6.
There is always leave of court.
Now, let us cite cases which are relevant to our topic on supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
FACTS: Karen went to the bank and obtained a loan – housing loan. A promissory note was
issued payable next year. After few months, Karen went back to the bank and secured a second
loan – agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the bank sued Karen on the first
promissory note. When the case was still going on, the second loan became due. So the bank
sought to file a supplemental complaint against Karen to collect the second loan. The maturity of
the second loan happened after the filing of the first pleading sought to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant are the same,
there are two separate loans independent of each other as a matter of fact the
stipulations are not identical. It cannot be the subject matter of a supplemental
complaint. In this case, there are many types of loans secured in different terms and
conditions.
“A supplemental complaint must based on matters arising subsequent to the original
complaint RELATED to the claim presented therein and founded on the same cause of
action.” It cannot be used to try of another matter or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow money from you for P600,000 payable in
three installments. First installment is on February for P200,000; second installment is on April; and the last
installment is on June for the last P200,000. There is no acceleration clause. When the first installment fell due,
I did not pay. So the plaintiff filed a case against me to collect the first installment. In April, the case is still not
yet decided. In fact the second installment again fell due. Plaintiff moved to file for the supplemental pleading.
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While the two cases are still pending, the last installment fell due and again there is failure to pay, so there is
another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and the installments are
interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in janitorial services. A government
corporation, the Home Development and Mutual Fund (HDMF) sought a public bidding on who will
be the company who shall provide janitorial services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start providing the service for the
year 1990. However, the HDMF refused to honor the award. So, on November 8, 1989, Superclean
filed in the RTC of Manila a complaint for mandamus and certiorari against HDMF alleging that at
public bidding for janitorial services for the year 1990, it won as the lowest bidder but HDMF refused
without just cause, to award the contract to 'hem,
The problem was that 1990 already ended and the case was still on-going. So it was already
rendered moot and academic. What Superclean did was to file a supplemental complaint in 1991
alleging that because the contract of service was the furnishing of janitorial services for the year
1990, the delay in the decision of the case has rendered the case moot and academic without
Superclean obtaining complete relief to redress the wrong committed against it by HDMF which
relied now consists of unrealized profits, exemplary damages and attorney’s fees.
So, money claim na lang dahil moot and academic na eh. Instead of pursuing its prayer for
mandamus, Superclean sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to seek a different relief in view of
developments rendering the original complaint impossible of attainment?
HELD: “The transaction, occurrence or event happening since the filing of the
pleading, which is sought to be supplemented, must be pleaded in aid of a party's right
of defense as the case may be. [That’s the purpose of the supplemental pleading – in aid
of the party’s cause of action or defense] But in the case at bar, the supervening event
is not invoked for that purpose but to justify the new relief sought.”
“To begin with, what was alleged as a supervening event causing damage to
Superclean was the fact that the year for which the contract should have been made had
passed without the resolution of the case. The supervening event was cited not to
reinforce or aid the original demand, which was for the execution of a contract in
petitioner's favor, but to say that, precisely because of it, petitioner's demand could no
longer be enforced, thus justifying petitioner in changing the relief sought to one for
recovery of damages. This being the case, petitioner's remedy was not to supplement,
but rather to amend its complaint.” You are actually changing the relief so that the
correct remedy is not a supplemental complaint but an amended complaint.
“Be that as it may, the so-called Supplemental Complaint filed by petitioner should simply be
treated as embodying amendments to the original complaint or petitioner may be required to file an
amended complaint.” So, meaning, you call it a supplemental complaint, the court will call it as an
amended complaint or the other alternative, require him to file an amended complaint.
Sec. 7. Filing of amended pleadings. - When any pleading is amended, a new copy of
the entire pleading, incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed. (7a)
When a party files an amended pleading, the amendments should be indicated by appropriated marks,
normally, the amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined. The
purpose for such marking is for the court and the opposing party to immediately see and detect the
amendment. If no appropriated mark is provided the court and the lawyer has to compare everything,
paragraph by paragraph, sentence by sentence, line by line. Now, if there are underlines, the court will just
concentrate on the underlined portion. This is for convenience for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading supersedes the
pleading that it amends. However, admissions in superseded pleadings may be
received in evidence against the pleader; and claims and defenses alleged therein
not incorporated in the amended pleading shall be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental pleading;
second distinction)
The first sentence is one of the distinctions between an amended pleading and a supplement pleading.
From procedural viewpoint, the original pleading is already non-existent. The court will no longer consider
anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such
statement, so that the court will not consider it anymore. Such statement is out of the picture. Now, if you want
to bring to the attention of the court the statement found in the original pleading, you must offer the original
pleading in evidence to consider it all over again. This rule will be considered in the study of EVIDENCE.
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Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are discussed in this rule are periods. The question when a defendant wants to file an answer is, “How
many days does he have?” There must be a deadline. Rule 11 applies to all persons – natural and juridical such
as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his answer to the
complaint within fifteen (l5) days after service of summons, unless a different period
is fixed by the court. (1a)
Section 1 is the GENERAL RULE – the defendant has a period of 15 days after service of summons within
which to file his answer. The procedure is when a plaintiff files a complaint in court, the court will issue
summons (which is the counterpart of warrant of arrest in criminal cases). The sheriff of the court will look for
the defendant and serve him a copy of the complaint. From that day on, the defendant has 15 days to file his
answer.
The rules says, “unless a different period is fixed by the court.” That would be the EXCEPTION to the 15-day
period to file answer. Now, when are these instances when the court may fix a different period? They are those
mentioned in Rule 14, Sections 14, 15, and 16 – yung tinatawag service of summons by publication.
Let’s give example to the general rule. EXAMPLE: If the defendant is served with a copy of the complaint
and summons today (January 13,1998), the last day to file an answer will be January 28, 1998. Just add 15 days
to January 13.
In computing the a period, you follow the rule known as “exclude the first, include the last day rule”
under Article 13 of the New Civil Code. I think you know how to apply that. When you receive the complaint
today or when you are summoned today, you start counting the period tomorrow. Such rule is also
found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of time prescribed
or allowed by these Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins to run is to
be excluded and the date of performance included. If the last day of the period, as
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thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next working day. (n)
(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-1998]:)
So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where the
case will run is to be excluded. Meaning, when you receive the summons, you count one but today is excluded
and of course the last day is included. And if the last day is the next working day. A: It is done on the next
business day. Here, there is an automatic extension.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts
the running of the period, the allowable period after such interruption shall start to
run on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the
computation of the period. (n)
Alright, a good example of this is period to file an answer which is 15 days. And then you filed a motion to
dismiss under Rule 16 somewhere in between. Now, what is the principle to be remembered here?
The filing of the motion to dismiss will now be interrupt the running of the 15 -day period. And when your
motion is denied, if you receive the order of the denial now, you continue computing the balance within the
remaining period to file your answer.
Now, some people can’t understand this second sentence – “The day of the act that caused the interruption
shall be excluded in the computation of the period.” Many are wondering kung ano ba ang ibig sabihin nito! The
meaning of this is exemplified in the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
We will assume that on November 30 (end of the month), you were served with summons by the court. So
you have 15 days to file your answer from November 30. Let us say, on December 10, you filed a motion to
dismiss under Rule 16. So, the remaining of the period to file an answer is interrupted. And let us say on
December 15 or 5 days thereafter, your motion was denied, you receive a copy of the order of denial.
My QUESTION is, how many days more do you have or left to file your answer? Five days?
How many days did you consume? From November 30 to December 10 = 10 days. Tapos, December 10 to
December 15 = not counted. And you still have 5 days, so December 20, di ba?
Now if you ask majority of lawyers here, they will give the same answer. BUT according to LABITAD, that
computation is wrong. You actually have six (6) days.
So your deadline to file you notice to appeal is December 21. Why? Akala ko ba the filing of the
motion to dismiss interrupts? Now, when did you file your motion? December 10. Therefore,
December 10 is not counted because it is already interrupted.
So actually, you did not consume 10 days but only 9 days. That is the explanation of the SC in the case of
LABITAD – the day you filed your motion to dismiss is already excluded. So you only count December 1
to 9. This is the illustration of the sentence “the day the act which caused the interruption is excluded in the
computation of t tie period.”
ILLUSTRATION:
November 30
Defendant
Summons
December 10
received
Defendant
filed
Motion to Dismiss
a
December 15
December 21
Motion to Dismiss is
denied.
Deadline to file the
Answer
Alright, let’s go back to Rule 11:
Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a
foreign private juridical entity and service of summons is made on the government
official designated by law to receive the same, the answer shall be filed within thirty
(30) days after receipt of summons by such entity. (2a)
The defendant here is a foreign private juridical entity. Meaning, a foreign corporation doing business in the
Philippines. In the first place, one cannot sue a foreign private corporation which is not doing business in the
Philippines because there is no way that the court can acquire jurisdiction over the person of such corporation.
If the foreign private corporation is doing business in the Philippines, then one can sue it here in the Philippines.
EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific, etc.
Q: Now, what is the period to answer when the defendant is a foreign private corporation doing business in
the Philippines?
A: It DEPENDS:
a.) When the foreign corporation has a designated resident agent, the summons shall be
served to the resident agent, and he has 15 days to answer, just like any defendants in
Section 1.
b.) On the other hand, if the foreign corporation does not have any designated resident
agent in the Philippines, then under the Corporation Code, the summons shall be served
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to the government official designated by law to receive the same, who is duty bound to
transmit it to the head office of the corporation abroad. And the corporation now has 30
days from receipt of summons to file its answer.
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law to receive summons?
A: Generally, it is the Secretary of the Department of Trade and Industry. But for some types of
business, the law may designate any other official. Like the foreign corporation to be sued is a foreign insurance
company (e.g. Sun Life of Canada), under Insurance Code, you serve it to the Insurance Commissioner.
Or if it is a foreign bank which has branch here, you serve the summons to the Superintendent of
the Bangko Sentral ng Pilipinas.
Sec. 3. Answer to amended complaint.
Where the plaintiff files an amended complaint as a matter of right, the
defendant shall answer the same within fifteen (l5) days after being served with a
copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended
complaint within ten (10) days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the amended complaint if no new
answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention. (3a)
Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two (2)
periods – first paragraph, 15 days; second paragraph, 10 days. Now what is the difference?
Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer.
Meaning, the complaint is served on you and even before you answer it was amended and another complaint is
served, then you have 15 days to file your answer counted from the day of service of the amended complaint.
So forget the original period and you have 15 days all over again.
But suppose the defendant has already answered the original complaint and then the plaintiff decides to
amend his complaint which under the previous rule, is a matter of judicial discretion. Now, suppose the court
issued an order admitting the amended complaint and the defendant is furnished of the copy of the order
admitting the amended complaint. Therefore, if he wants to answer the amended complaint, he has 10 days to
do it and not 15 days. The 10-day period will be counted from service of the order admitting the
amended complaint, not from the service of the amended complaint because the same may not be
admitted. You wait for the order of the court admitting the amended complaint.
So, there are two (2) periods to file an answer to an amended complaint.
Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint
but I did not file an answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the
amended complaint if no answer is filed. Like when the amendment is only formal, why will I
answer? In other words, my defenses to the original complaint is still applicable.
So the principle is: if no answer is filed to the amended complaint, the answer to the original complaint
automatically serves as the answer to the amended complaint and therefore the defendant cannot be declared
in default.
Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims, amended
cross-claims.
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be
answered within ten (l0) days from service. (4)
Now, if you answer a counterclaim or cross-claim, you have Section 4. The period to file an answer to a
counterclaim or cross-claim is only ten (10) days from the time it is served.
Q: What happens if the plaintiff does not answer the counterclaim of the defendant?
A: He can be declared in default on the counterclaim. He has still standing to prove his cause of action in
the main case but he loses his standing to defend himself in the counterclaim.
Q: Are there instances where an answer to a counterclaim is optional? Meaning, the plaintiff does not
answer and he cannot be declared in default.
A: YES, that is when the counterclaim is so intertwined with the main action – they are so
intertwined that if the plaintiff would answer the counterclaim, it would only be a repetition of
what he said in his complaint. In this case, even if the plaintiff will not answer, he cannot be
declared in default.
EXAMPLE: The plaintiff filed a case against the defendant for damages arising from a vehicular collision.
According to the plaintiff, because of the negligence of the defendant, the plaintiff’s vehicle was damaged
amounting to that much. So the cause is quasi-delict. Now in his answer, defendant says no and he denied the
liability and he files a counterclaim saying, “As a matter of fact, it is the plaintiff who is negligent. And since my
vehicle was damaged, I am now claiming damages against him.”
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So practically, the issue on negligence is being thrown back. Now, the plaintiff did not answered the
counterclaim, can he be declared in default? NO, because if you require the plaintiff to file an answer, what will
he say? The same, “NO, you were the one at fault!” So, uulitin na naman niya 'yung sinabi niya in his complaint.
It is already repetitions. Yan, so that is one of the exceptions.
Sec. 5. Answer to third (fourth, etc.)- 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. (5a)
Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading
responded to. (6)
If you want to file a reply, you have ten (10) days to file. But as a general rule, the filing of a reply is
optional.
Sec. 7. Answer to supplemental complaint. A supplemental complaint may be
answered within ten (10) days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental answer is filed. (n)
It follows the same rule as in Section 3, second paragraph. A supplemental complaint may be
answered in ten (10) days. The computation is again from notice of the order admitting the same.
Suppose I will not answer the supplemental complaint? The same principle – the answer to the
original complaint shall serve as the answer to the supplemental complaint. So it follows the same
principle as the amended complaint in the second paragraph of Section 3.
Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a crossclaim that a defending party has at the time he files his answer shall be contained
therein. (8a, R6)
One of the requisites to make a counterclaim compulsory is that the defending party has the counterclaim
at the time he files his answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a crossclaim which either matured or was acquired by a party after serving his pleading
may, with the permission of the court, be presented as a counterclaim or a crossclaim by supplemental pleading before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a
counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect,
or when justice requires, he may, by leave of court, set up the counterclaim or crossclaim by amendment before judgment. (3a, R9)
Existing counterclaims or cross-claims, tapas na ito ano? We already discussed this before. As a matter of
fact, Sections 9 and 10 illustrates the distinction between an amended pleading to a supplemental pleading.
If the counterclaim or cross-claim was acquired by a party after serving his pleading, he may raised it by
way of supplemental pleading. But if a pleader fails to set up a counterclaim or a cross-claim which is already
matured when he filed his pleading due to inadvertence or excusable neglect, then he way raise it by way of
amended pleading.
Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just,
the court may extend the time to plead provided in these Rules.
The court may also, upon like terms, allow an answer or other pleading to be filed
after the time fixed by these Rules. (7)
The period to file is 15 or 10 days, but the general rule is 15 days.
Q: Now, is the 15-day period extendible?
A: YES, upon motion and on such terms as may be just, the court may extend the time to plead.
Normally, the lawyer will file a motion for extension of time to answer on the 15th, the 14th, or the 13th
day. That’s very common. The common reason of the lawyers for the extension is pressure of work – maraming
trabaho ba. Others are because of the traditional mañana habit. We usually act during the deadline.
Take note that when you file your motion for extension, do it within the original 15-day period.
Do not file your motion on the 16th day because there is nothing to extend. So the extension is
usually filed within the 15-day period.
Q: Now what happens if the lawyer fails to file such a motion? So naglampas na yung 15 days. And then on
the 18th, he will now file an answer. Practically out of time na yan because the 15-day period already expired
and he did not ask any motion for extension. Now what should the lawyer do?
A: The lawyer can use the second paragraph, “The court may also, upon like terms, allow an
answer or other pleading to be filed after the time fixed by these Rules.” The correct motion is
“MOTION TO ADMIT LATE ANSWER.”
EXAMPLE: The deadline is 3 days ago. I failed to file my answer but now it is ready. So, “motion to admit
belated answer.”
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Normally, the courts here are liberal in allowing extensions. The general rule is that the court frowns on
default. As such as possible both sides must be heard. So in the spirit of liberality, courts are usually liberal in
allowing these extensions in time to file answers. I still have to see a judge na i-deny yan. Standard na yan, eh.
SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
PLEADING PERIOD
1.) Answer
15 days
2.) Answer of a private foreign corporation
a.) with designated Philippine representative
b.) no designated Philippine representative
15 days
30 days
3.) Answer to an amended complaint
a.) if as a matter of right
b.) if as a matter of judicial discretion
15 days
10 days
4.) Answer to counterclaim or cross-claim
10 days
5.) Answer to third (fourth, etc.) party complaint
15 days
6.) Reply
10 days
7.) Answer to supplemental complaint
10 days
Rule 12
BILL OF PARTICULARS
Section 1. When applied for; purpose. Before responding to a pleading, a party may
move for a definite statement or for a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him properly to prepare
his responsive pleading. If the pleading is a reply, the motion must be filed within
ten (10) days from service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained, and the details desired.
(1a)
Q: Define Bill of Particulars.
A: A bill of particulars is a more definite statement of any matter which is not averred with sufficient
definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive pleading.
(Section 1)
Alright. So, let’s go to the application of this remedy.
EXAMPLE: The plaintiff filed a complaint against you and you are now furnished with a copy by the lawyer of
the plaintiff. So, you have to file your answer. You have to understand what the cause of action is all about. So
you read the complaint – you notice that the allegations are vague, ambiguous, and uncertain. So, you cannot
understand the allegations. So, you have a hard time preparing your answer. Now, you do not want to answer
something that you cannot understand.
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Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a bill of particulars and according
to Section 1, your motion will point out the defects complained of, the paragraphs where they are
contained and the details desired. Because according to you, the allegations are not averred with
sufficient definiteness or particularity to enable you properly to prepare your responsive pleading
that is what it is all about.
So the defendant resorts to the Bill of Particulars if the allegations of ultimate facts in the complaint are
vague and ambiguous that the defendant will have difficulty in preparing his answer. So, he can not understand
and will ask for more details to clear the ambiguities. He will file a motion for Bill of Particulars, citing the
detects and ask for the details, because how can he prepare an answer if he does not understand the
complaint? Aber?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the defendant file a
motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague, ambiguous. (Pañgan vs.
Evening News, L-13308, Oct. 29, 1960) The correct remedy is for the defendant to file a motion for
bill of particulars, which will ask for more details on these vague portions of the complaint. (Amoro
vs. Sumaguit, L-14986, July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN
180 SCRA 34 [1989]
HELD: “The proper office of a bill of particulars is to inform the opposite party and the court of
the precise nature and character of the cause of action the pleader has attempted to set forth, and
thereby to guide his adversary in his preparations for trial and reasonably protect him against
surprise at the trial. It complements the rule on pleadings in general, that is, that the complaint
should consist of a concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what the plaintiff wants — to preclude
the latter from springing a surprise attack later.”
According to the SC, the primary purpose of the bill of particulars is to apprise the adverse party of what a
plaintiff wants. To preclude the latter from springing a surprise attack later. Why? Because the plaintiff may
deliberately make his allegations vague. Sinadya ba niya? To confuse you – to mislead you – because you might
adopt a different interpretation. If the interpretation turns out to be different, your defenses might be wrong.
So, he deliberately make his complaint ambiguous. Now, the other party should thwart that by asking for a bill
of particulars to compel the plaintiff to make the allegations of his cause of action clearer. So, that is what the
bill of particulars is all about.
Now, we will do to a specific situation and let’s find out whether the defendant could file for a bill of
particulars.
PROBLEM: Now, suppose the pleader says in his complaint that he has been in the possession of the
litigated property continuously for forty (40) years. The defendant flied a motion for a bill of particulars, “The
allegations is very broad, very general, very vague. Please tell by way of particulars what are the improvements
you introduced for the past 40 years. I would like to ask for these details to clarify your allegations that you
have been in continuous possession of the land for 40 years.”
Q: Is that a proper motion for a Bill of Particulars?
A: NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no
obligation to state the evidentiary matters in his complaint. It should only state ultimate facts. So,
it is not allowed in the pleading. You cannot ask for that by way of particulars.
So, what is sought to be remedied are vague and ambiguous statements of ultimate facts. But
you cannot used it to fish for evidentiary matters. Evidentiary facts cannot be the subject of a
motion for a bill of particulars.
Q: But is it not fair that before trial I should know your evidentiary matters?
A: I believe it is fair for the defendant to compel the plaintiff to reveal the details of his ultimate
facts but not under Rule 12. You better avail of the modes of discovery under Rule 23, depositions,
request for admission, etc. But you cannot convert Rule 12 into a modes of discovery. Each rule has
its own functions.
So, let’s give a good example of an instance, where the defendant can rightfully ask for more specifics or
particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of contract on the ground that the defendant
employed FRAUD in getting the consent of the plaintiff. The plaintiff said, “He got my consent to the contract by
fraud.” The defendant filed a motion for a bill of particulars: “That the defendant employed fraud in getting
plaintiff’s consent is vague, So, I’m asking the plaintiff should give more specifics. How did I fool you? In what
way did I employ fraud? In what way was the fraud exercised?”
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with particularity. So, you go back in Rule
8, Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the mind.—In all averments of fraud or
mistake, the circumstances constituting fraud or mistake must be state with
particularity. x x x
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We already studied that provision. Therefore, if the allegation of the plaintiff is simply that the defendant
employed fraud, that allegation is not sufficient because under Rule 8, it must be stated with particularity.
Therefore, if it is not stated with particularity, the remedy of the defendant is to file a motion for a bill of
particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer malabo. It is the other way around. It is
the defendant’s answer which is vague or uncertain. Can the plaintiff file a motion for bill of particulars to
compel he defendant to clarify or to particularize his vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I mean, I want to file a reply but I can’t file a
reply unless I understand what is your defense.” So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is vague or ambiguous. Can the defendant file
a motion for bill of particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10 days. So even if the reply is
vague, it can still be the subject of the bill of particulars within 10 days because there is no more
responsive pleadings there.
So, every pleading which is vague the other party can always compel you to make it clearer.
Q: Is this remedy available in criminal cases?
A: YES. If it is the information which is vague, you cannot understand the allegations in the information, you
cannot plead, “Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko maintindihan eh” the accused
can file a motion for bill of particulars to require the prosecution to clarify vague portions of a complaint or
information.
There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The accused may, before arraignment, move for
a bill of particulars to enable him properly to plead and prepare for trial. The motion
shall specify the alleged defects of the complaint or information and the details desired.
(10a)
The concept is the same. If the allegations in the information are also vague and ambiguous, “I cannot
understand it, so I cannot intelligently enter my plea.” The accused, before arraignment, can move for a bill of
particulars to enable him to prepare properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s
office when the case was under preliminary investigation. (In preliminary investigation, you are
given the affidavit of the complainant and his witnesses. And then you are given 10 days to submit
your counter-affidavits.) Here, the affidavit is vague according to the accused, so he is filing a bill of
particulars. He wanted to compel the complainant to make his affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary
investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the complainant is
saying in his affidavit?” The SC said, that is simple! If you cannot understand what the complainant
is saying in his affidavit, chances are, the fiscal also will not understand it. And consequently, he will
dismiss the case. Eh di mas maganda! Wag ka na lang mag-reklamo! [tanga!]
Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court which may either deny or grant it
outright, or allow the parties the opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to the
attention of the court and the court can deny or grant the motion immediately. But of course, it is up to the
court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which is not
found in the old rules?
A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear. Pero
sadyain niya – he will file a motion for bill of particulars that he cannot understand. Then, pag file niya ng
motion, he will set the motion for hearing 2 weeks from now. Then the motion is denied because it has no merit,
then, file ka ng answer. In other words, the period to file for an answer has been denied because it has no merit.
Then, file ka ng answer. The period to file for an answer has been delayed. The defendant has succeeded in
delaying the period for filing an answer by pretending that he cannot understand pero actually klaro man ba.
So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to
immediately act on the motion without delaying the filing of the answer. That is the reason why this provision
was inserted because the filing of the motion for bill of particulars can cause delay.
Sec. 3. Compliance with order. If the motion is granted, either in whole or in part,
the compliance therewith must be effected within ten (l0) days from notice of the
order, unless a different period is fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed either in a separate or in an
amended pleading, serving a copy thereof on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the bill
of particulars. How will you comply with the order to file a bill of particulars?
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A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such other order as it
deems just. (1[c]a)
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of particulars. The
plaintiff refused to comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof which is the object of the bill of
particulars. Like for example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will now issue an order
to strike out the entire complaint. It is as if the complaint was never filed. Practically, your complaint was
dismissed. In effect your complaint was dismissed because if the complaint was ordered stricken out, then it is
equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars
or of a more definite pleading, or after notice of denial of his motion, the moving
party may file his responsive pleading within the period to which he was entitled at
the time of filing his motion, which shall not be less than five (5) days in any event.
(1[b]a)
Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on that
on the 15-day period to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of
particulars. The period continues to run from the date that you received the bill of particulars, if
your motion is granted, or from the receipt of the order denying your motion if it was denied. From
there, the period to answer will run again so you have to file your answer within the balance of the
remaining period.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a bill of particulars. Pagfile mo on the 8th day , the running of the period automatically stops and then after several days, you receive
the order. For example, denying your motion, you still have 8 days to go because the period during which your
motion was pending will not be counted. Na- interrupt ang takbo ng 15 days.
Q: Suppose, you file your motion for a bill of particulars on the 14th day and your motion is denied. You
received the order today. How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days. Kahit one day to go na lang, balik ka
naman sa 5. At least minimum. So, it is 5 days or more but never be less than 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared in
default. The plaintiff cannot declare the defendant in default for failure to file an answer because 15 days had
already lapse. Pag file ng motion, itigil mo muna ang takbo ng araw. It will be interrupted by the filing of the
motion and the period commences to run again from the time he received the bill of particulars or the order
denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for
which it is intended. (1[a]a)
Ah, yes. It is very clear ‘no? When you file a bill of particulars clarifying the paragraphs in the complaint
which are vague, the bill of particulars becomes part of the complaint with its supplements.
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and other
papers, as well as the service thereof, except those for which a different mode of
service is prescribed. (n)
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As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings “except
those for which a different mode of service is prescribed.” An example of the exception is the service of
complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is ordered by
the court. Where one counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading in the office of the clerk of court. When you say
SERVICE, you furnish a copy of the pleading to the party concerned, or if he is represented by a
lawyer, you must furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the
lawyer and not to the party. Service to a party is not valid. What is valid is service to the counsel.
Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless the
court orders direct service to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may raise to
the effect that he knows nothing about court procedure and also to maintain a uniform procedure calculated to
place in competent hands the orderly prosecution of a party’s case. (Hernandez vs. Clapis, 87 Phil. 437; Javier
Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what to do. Since the
lawyer is presumed to know the rules, at least it is on competent hands. But if you got to the party himself, the
problem is he might start complaining later, “My golly, kaya nga ako kumuha ng abogado kasi hindi ako
marunong.”
There was a even a case when the client volunteered to get the copy of the decision. But he
party failed to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because
the rule is service to lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON THE
PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
HELD: “Usually, service is ordered upon the party himself, instead of upon his
attorney, [1] when it is doubtful who the attorney for such party is, or [2] when he
cannot be located or [3] when the party is directed to do something personally, as when
he is ordered to show cause.”
There are rare circumstances however where service to the lawyer does not bind the client.
These are cases of negligence; where the lawyer is in bad faith for gross negligence; where he
deliberately prejudiced his client. So it is unfair that the party may be bound by the service to the
lawyer because of those circumstances. One such instance happened in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible cannot be
considered as notice to his client. The application to the given case of the doctrine that notice to
counsel is notice to parties should be looked into and adopted, according to the surrounding
circumstances; otherwise, in the court’s desire to make a short cut of the proceedings, it might
foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be
easy for one lawyer to sell one’s rights down the river, by just alleging that he just forgot every
process of the court affecting his clients, because he was so busy.”
So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit naman
iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer
entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel
appears for several parties, he shall only be entitled to one copy of any paper served upon him by
the opposite side.” But if the 5 defendants are represented by different lawyers, that is another
story. Every lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat abogado
ba may kopya?
A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or
one of them…” Service to one is service to all. You can do it if you want to but service on one will
suffice.
127
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made by presenting the original
copies thereof, plainly indicated as such, personally to the clerk of court or by
sending them by registered mail.
In the first case, the clerk of court shall endorse on the pleading the date and
hour of filing.
In the second case, the date of the mailing of motions, pleadings, or any other
papers or payments or deposits, as shown by the post office stamp on the envelope
or the registry receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the record of the case. (1a)
Under Section 3, there are two (2) modes of filing – either
1.) Personally; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go to the court and the court will mark it
RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Section 3 says, “…by presenting the original copies thereof, plainly indicated as such personally to the clerk
of court…” There was a lawyer before who referred to me. He said he filed a complaint. There are many copies
of it. The court will usually receive 2 or 3 copies – 1 for itself, 1 for the defendant to be sued in summons, then
any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw nakalagay na “ORIGINAL.” Sabi ng
lawyer, lahat naman ito original, kasi naka-computer. So, everything is original. Sabi na clerk of court, “Eh di,
dapat sulatan mo ng ‘original’!” Where did the clerk of court got that rule? Maski klaro na, sulatan pa rin ng
original? Sabi ng clerk of court, “Nasa 1997 Rules and requirement na iyan.”
So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court, “The filing of
pleadings… shall be made by presenting the original copy thereor plainly indicated as such.” Meaning,
“original,” “duplicate,” “original,” “duplicate.” To my mind, huwagn amang masyadong istrikto. Nasubrahan ng
basa ba! When you read too much, you become very technical. Why refuse to accept? Simply because walang
word na ‘original’? Eh, di ikaw ang maglagay! So the clerk of court, with that phrase “plainly indicated as such,”
becomes too strict.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is registered mail.
Q: What is the importance of registered mail on filing of pleadings and motions in court?
A: The importance is the rule that in registered mails, the date of filing is the date of mailing. If you
send the pleading through the Post Office by registered mail, the date of filing is not the date on which the
letter reached the court but on the day that you mailed it. So the date on the envelope is officially the date of
filing.
Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service like LBC or
JRS Express delivery, or by ordinary mail? What is the rule if instead of the registered service of the Post Office,
you availed the private messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not deemed
filed until it is received by the court itself.
When it is by registered mail, the date of mailing as shown by the Post Office stamp is
considered as the date of filing. The envelope is attached. The post office is automatically a
representative of the court for the purpose of filing. In other words, the law treats the
messengerial company only as your process helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597 [1994]
HELD: “Where a pleading is filed by ordinary mail or by private messengerial service, it is
deemed filed on the day it is actually received by the court, not on the day it was mailed or
delivered to the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.
April 18, 1997
HELD: “Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of
Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic and was originally signed by the party
and his counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed –
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Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its
existence in the record of the case.
If it is not in the record, but is claimed to have been filed personally, the filing
shall be proved by the written or stamped acknowledgment of its filing by the clerk
of court on a copy of the same;
if filed by registered mail, by the registry receipt and by the affidavit of the
person who did the mailing, containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to the postmaster to return the mail
to the sender after ten (10) days if not delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I filed it in
court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not yours
but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the post
office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full statement of
the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. It must
be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment, resolution, order,
pleading subsequent to the complaint, written motion, notice, appearance, demand,
offer of judgment or similar papers shall be filed with the court, and served upon the
parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the opposing party’s
counsel. And all documents, as a rule, shall be filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. bakit ba ‘subsequent’? Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not
really have to go to the defendant to serve the complaint. The complaint is brought to the court
because the summons will be issued.
But if you are the defendant’s lawyer, you go directly to the plaintiff’s lawyer to serve the answer because
an answer is a pleading ‘subsequent’ to the complaint. Moreover, the manner of serving complaint is not
governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand this – “Every
judgment, resolution, order… shall be filed with the court and served to the parties...” Well of course, iyang mga
pleadings, motions, etc., you file and serve because there must be proof of service to the adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually, the judge
has to file his decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court. (1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments
and other papers shall be made either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?
A: Either:
1.) personally or
2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or by
registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by delivering
personally a copy to the party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof. If no person is found in his office, or his
office is not known, or he has no office, then by leaving the copy, between the hours
of eight in the morning and six in the evening, at the party's or counsel's residence,
if known, with a person of sufficient age and discretion then residing therein. (4a)
How are pleadings served personally? You deliver it personally to the party if he is not represented by a
counsel. And if he is represented, then to his counsel. You don’t have to look for his lawyer – you way leave it to
his office with the clerk or any person charged thereof and that is already personal service. Most lawyers have a
receiving clerk authorized to receive pleadings.
129
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC
128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So, siguro, sira iyong
elevator, gikapoy iyong process server, what he did was, he left the copy of the judgment to the
receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on the 9th floor and not
at the ground floor with somebody who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of record in the absence
of due notice to the court of change of address. The service of decision at the ground
floor of a party’s building and not at the address of record of the party’s counsel on
record at the 9th floor of the building cannot be considered a valid service.”
“Service upon a lawyer must be effected at the exact given address of the lawyer
and not in the vicinity or at a general receiving section for an entire multi-storied
building with many offices.”
But the case of PLDT should not be confused with what happened in the case of
PCI BANK vs. ORTIZ
150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on
the 5th floor. And again, the habit of
the process server is that instead of going to the 5th floor, he would just approach the receiving
station on the ground floor. Now, of course the receiving clerk, everytime the lawyer passes by,
gave it to the lawyer. And the lawyer here did not question the practice.
Now, when a decision against PCI Bank was served, the lawyer claimed they are not bound
because there was no proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the trouble is, it was going on for some
time and you are not complaining. So, the ground floor becomes your adopted address. Naloko na!
“They cannot now disown this adopted address [iyung ground floor] to relieve them from the
effects of their negligence, complacency or inattention. Service, therefore, of the notice of judgment
at the ground floor of the building, should be deemed as effective service.”
So, the judgment became final. There was no appeal. Those are examples of personal service.
Q: So, when is personal service complete?
A: It is completed upon actual delivery. Section 10:
Sec. 10. Completeness of service.
1.
2.
3.
Personal service is complete upon actual delivery.
Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court
otherwise provides.
Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from
the date he received the first notice of the postmaster, whichever date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered mail shall be made by depositing
the copy in the office, in a sealed envelope, plainly addressed to the party or his
counsel at his office, if known, otherwise at his residence, if known, with postage
fully pre-paid, and with instructions to the postmaster to return the mail to the
sender after ten (l0) days if undelivered. If no registry service is available in the
locality of either the sender or the addressee, service may be done by ordinary mail.
(5a; as amended by En Banc Resolution, Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this time although the law
prefers service by registered mail, however, the last sentence of Section 7 says, “If no registry service is
available in the locality of either the sender or the addressee, service may be done by ordinary mail.”
Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed for
purposes of service (Section 7), but for purposes of filing (Section 3), wala! For purposes of filing,
the law does not recognize the ordinary mail. If you do it, it will be treated as personal filing. In
registered mail, the date of receipt is considered the date of filing not the date of mailing. Service
by ordinary mail is allowed but filing by ordinary mail is not allowed
Q: Now, when is service by mail deemed complete?
A: Section 10:
130
Sec. 10. Completeness of service. Personal service is complete upon actual delivery.
Service by ordinary mail is complete upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. Service by registered mail is complete
upon actual receipt by the addressee, or after five (5) days from the date he received
the first notice of the postmaster, whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if they are already notified. He knows it is an
order he expects to be adverse so he will try to defeat the service by not claiming it. NO, you are at a
disadvantage because after the expiration of so many days, service is deemed completed. That is what you call
CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the process of the law by simply not
claiming his mail. You can be bound by a decision which you never read. That is constructive
service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made under the two preceding sections, the office
and place of residence of the party or his counsel being unknown, service may be
made by delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete at the time of such
delivery. (6a)
Kung somehow there was an attempt of personal service or registered service at walang nangyari, you can
resort to by serving a copy to the clerk of court with proof of failure of personal and mailing service. And by
fiction of law, the adverse party has already been served.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or
resolutions shall be served either personally or by registered mail. When a party
summoned by publication has failed to appear in the action, judgments, final orders
or resolutions against him shall be served upon him also by publication at the
expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by registered mail. That’s
why if you go to the court, there are employees there who are called process servers. Everyday, they go around
from law office to law office to serve court orders, notices and judgments. And that is personal service. But if
the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and that is service by
publication. That is if the parties were summoned by publication under Rule 14 and they did not appear. The
judgment is also served to them by publication at the expense of the prevailing party.
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service
and filing of pleadings and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done
personally. A violation of this Rule may be cause to consider the paper as not filed.
(n)
That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And the
law says, personal service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you resorted to mail and not to personal service.
Q: Suppose I will file it without any explanation.
A: The law says, “A violation of this rule may be cause to consider the paper as not filed.” And that is a very
radical rule..
For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the pleading
or motion and then, nakalagay doon sa pleading : “Explanation: I have to resort to registered mail because it is
expensive for me to resort to personal service. It is expensive if I will send my messenger to Davao just to serve
whereas if I send by registered mail, it will only cost me P5.00.” They have to state that. Takot sila eh because
without it, the pleading is not considered as filed. Of course this rule should be interpreted based on common
sense.
To my mind, the rule should be construed reasonably. If I am the judge, even if there is no explanation, I will
allow it. Common sense eh! Alangan papuntahin pa dito ang messenger at pa-eroplanuhin mo pa!
Now, I think the purpose of this new provision has been provoked by some malpractices of the lawyers.
There were some instances before which have been confirmed especially in Metro Manila. The opposing counsel
is just across the street ang opisina. He will send a motion to be received today. Instead of serving you, he will
mail it. Mas malayo pa ang Post Office para hindi mo matangap. They will deliberately do it because it could not
reach you on time. I think if you do that, I will not consider your motion. Or, kunwari may motion ka. You will
send me a copy by mail and you are along C.M. Recto St. Bakit ka nag-mail eh mas malayo pa ang Post Office
kaysa office ko? Unless you explain, I will deny your motion.
131
Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para maniguro, you
explaint na lang: “Explanation: Because of time constraint and distance, I had to resort to registered mail.” That
is now the standard explanation which appears in many pleadings or motions. It is a radical provision.
Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The
court does not have to explain why it resorted to registered mail because Section 11 says,
“Whenever practicable, the service and filing of pleadings and other papers shall be done
personally EXCEPT WITH RESPECT TO PAPERS
E EMANATING FROM THE COURT.”
So the court is not obliged to give any explanation, only the parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORTE
293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons and copies of the
complaint were forthwith served on Co. Co then filed his answer. A copy thereof was furnished
counsel for Solar Team by registered mail; however, the pleading did not contain any written
explanation as to why service was not made personally upon Solar Team, as required by Section 11
of Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default, alleging therein
that Co did not observe the mandate of Section 11. RTC issued an order stating that under Section
11 of Rule 13, it is within the discretion of the RTC whether to consider the pleading as filed or not,
and denying, for lack of merit, Solar Team’s motion to expunge.
HELD: “Pursuant to Section 11 of Rule 13, service and filing of pleadings and other papers
MUST, whenever practicable, be done personally; and if made through other modes, the party
concerned must provide a written explanation as to why the service or filing was not done
personally. Note that Section 11 refers to BOTH service of pleadings and other papers on the
adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and
other papers in court.”
“Personal service will do away with the practice of some lawyers who, wanting to appear clever,
resort to the following less than ethical practices: serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance,
responsive pleadings or an opposition; or, upon receiving notice from the post office that the
registered parcel containing the pleading of or other paper from the adverse party may be claimed,
unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.”
“If only to underscore the mandatory nature of this innovation to our set of adjective
rules requiring personal service whenever practicable, Section 11 then gives the court
the discretion to consider a pleading or paper as not filed if the other modes of service
or filing were resorted to and no written explanation was made as to why personal
service was not done in the first place. The exercise of discretion must, necessarily,
consider the practicability of personal service, for Section 11 itself begins with the
clause ‘whenever practicable.’”
“We thus take this opportunity to clarify that under Section 11: Personal service and
filing is the GENERAL RULE, and resort to other modes of service and filing, the
EXCEPTION. Henceforth, whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is mandatory. Only
when personal service or filing is not practicable may resort to other modes be had,
which must then be accompanied by a written explanation as to why personal service or
filing was not practicable to begin with.”
“Of course, proximity would seem to make personal service most practicable, but exceptions
may nonetheless apply such as when: the adverse party or opposing counsel to be served with a
pleading seldom reports to office and no employee is regularly present to receive pleadings, or
service is done on the last day of the reglementary period and the office of the adverse party or
opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of opposing counsel and the absence of
any attendant explanation as to why personal service of the answer was not effected, indubitably,
Co’s counsel violated Section 11 and the motion to expunge was prima facie meritorious. However,
the grant or denial of said motion nevertheless remained within the sound exercise of the RTC's
discretion.”
“To Our mind, if motions to expunge or strike out pleadings for violation of Section 11 were to
be indiscriminately resolved under Section 6 of Rule 1, then Section 11 would become meaningless
and its sound purpose negated. Nevertheless, We sustain the challenged ruling of the RTC, but for
reasons other than those provided for in the challenged order.”
“The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was filed
only on 8 Aug 1997, or on the 39th day following the effectivity of the 1997 Rules. Hence, Co’s
counsel may not have been fully aware of the requirements and ramifications of Section 11. It has
been several months since the 1997 Rules of Civil Procedure took effect. In the interim, this Court
has generally accommodated parties and counsel who failed to comply with the requirement of a
written explanation whenever personal service or filing was not practicable, guided, in the exercise
of our discretion, by the primary objective of Section 11, the importance of the subject matter of the
case, the issues involved and the prima facie merit of the challenged pleading.”
“However, as we have in the past, for the guidance of the Bench and Bar, strictest compliance
with Section 11 of Rule 13 is mandated one month from promulgation of this Decision.”
“WHEREFORE, the instant petition is DISMISSED considering that while the justification for the
denial of the motion to expunge the answer (with counterclaims) may not necessarily be correct,
yet, for the reasons above stated, the violation of Section 11 of Rule 13 may be condoned.”
Sec. 13. Proof of service. Proof of personal service shall consist of a written
admission of the party served, or the official return of the server, or the affidavit of
the party serving, containing a full statement of the date, place and manner of
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service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with section 7 of this Rule. If service
is made by registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the notice given by the postmaster to
the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE?
A: It is through the written admission of the party served as admitted that he had been furnished with
a copy. The other alternative is that you file the affidavit of your employee, or messenger, that he served
the copy in the office of so and so. (containing full statement of facts). Or, the official return of the server.
The procedure is that there is a pleading and in the last portion there is that part which states:
Copy received
:
By :
January 16, 1998
(Signed) Atty. X
Counsel of Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the
registry receipt issued by the mailing office. The registry return card shall be filed immediately
upon its receipt by the sender. Or, in lieu thereof, of the unclaimed letter together with the
certified or sworn copy of the notice given by the postmaster – that is a constructive service ‘no?
Now in practice among lawyers when we serve by registered mail, we only attach the original in the registry
receipt and there is a quotation there in the original pleading, “Copy sent by registered mail, this 17th day of
January, 1998 to Atty. Juan dela Cruz, counsel for the plaintiff per registry receipt no. 123 hereto attached,” and
nobody complains.
But in reality, the law does not allow that. There must be an affidavit of the person who mailed it. The
surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is not reflected
to whom that letter is addressed so how will the court know that the registry receipt really corresponded to the
pleading that you mailed? It might be another letter like a love letter for your girlfriend or a letter to your
creditor. The registry receipt will not indicate kung ano ang na-mailed to his address. But we just allow it
because it is too tedious – everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may
nakalagay na “Copy sent by registered mail” without the affidavit, outright dismissal yan for lack
of proof of service. The SC and the CA are very strict about this requirement.
Let’s go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and
therefore you want to avail of the rules on constructive service – it is deemed served upon the
expiration of so many days. What you will file in court is the unclaimed letter together with a
certified or sworn copy of the notice given by the postmaster to the addressee.
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS
201 SCRA 768 [1991]
FACTS:
The CA Johnson and Johnson Philippines a decision in an envelope by registered
mail. After a while, the same envelope was returned to the CA. On the face of the envelope, it as
written, “Return to Sender, Unclaimed.” On the back of the envelope, there is an annotation “Return
to CA”.
With that, the CA applied the rule on constructive service – considered the decision as already
served. Johnson and Johnson Philippines questioned it. It never received any notice from the post
office. But according to the CA, it is very obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive service?
HELD: There is NO constructive service because there is no certification by the
postmaster that is claimed. This is what the law requires not just a one sentence
statement. One cannot even ascertain who wrote the statement. Certification should
include the details of delivery and not just state that notice was issued.
“A certification from the postmaster would be the best evidence to prove that the
notice has been validly sent. The mailman may also testify that the notice was actually
delivered. The postmaster should certify not only that the notice was issued or sent but
also as to how, when and to whom the delivery thereof was made.”
“There is nothing in the records of the present case showing how, when and to whom the
delivery of the registry notices of the subject registered mail of petitioner was made and whether
said notices were received by the petitioner. The envelope containing the unclaimed mail merely
bore the notation “RETURN TO SENDER: UNCLAIMED” on the face thereof and “Return to: Court of
Appeals” at the back. The respondent court should not have relied on these notations to support the
presumption of constructive service.”
The case of JOHNSON was reiterated in
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SANTOS vs. COURT OF APPEALS
293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before the CFI. CFI
dismissed the complaint for lack of merit. CA reversed and declared Santos liable for damages.
On 15 June 1995, the decision of the CA was sent by registered mail to Santos’ counsel, Atty.
Magno. On the same day, the corresponding notice of registered mail was sent to him. The mail
remained unclaimed and consequently returned to the sender. After 3 notices, the decision was
returned to the sender for the same reason.
On 27 September 1995, a notice of change of name and address of law firm was sent by Atty.
Magno to CA. On 28 March 1996, the same decision of CA was sent anew by registered mail to Atty.
Magno at his present address which he finally received on 3 April 1996. On 17 April 1996, Magno
withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, entered his appearance and moved
for reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the motion on the ground
that the period for its filing had already expired.
HELD: “The rule on service by registered mail contemplates 2 situations: (1.) Actual
service - the completeness of which is determined upon receipt by the addressee of the
registered mail; (2.) Constructive service - the completeness of which is determined
upon the expiration of 5 days from the date of first notice of the postmaster without the
addressee having claimed the registered mail.”
“For completeness of constructive service, there must be conclusive proof that
Santos’s former counsel or somebody acting on his behalf was duly notified or had
actually received the notice, referring to the postmaster's certification to that effect.”
“Here, Santos failed to present such proof before CA but only did so in the present proceedings.
Clearly then, proof should always be available to the post office not only of whether or not the
notices of registered mail have been reported delivered by the letter carrier but also of how or to
whom and when such delivery has been made.”
“Consequently, it cannot be too much to expect that when the post office makes a certification
regarding delivery of registered mail, such certification should include the data not only as to
whether or not the corresponding notices were issued or sent but also as to how, when and to
whom the delivery thereof was made. Accordingly, the certification in the case at bar that the first
and second notices addressed to Atty. Magno had been "issued" can hardly suffice the requirements
of equity and justice. It was incumbent upon the post office to further certify that said
notices were reportedly received.”
This last section, Section 14, has something to do with real actions, land titles – notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or the right of
possession of real property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer, may record in the office of the registry of deeds of the
province in which the property is situated a notice of the pendency of the action.
Said notice shall contain the names of the parties and the object of the action or
defense, and a description of the property in that province affected thereby. Only
from the time of filing such notice for record shall a purchaser, or encumbrancer of
the property affected thereby, be deemed to have constructive notice of the
pendency of the action, and only of its pendency against the parties designated by
their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon
order of the court, after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights of the
party who caused it to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot know why notice of lis
pendens which refers to lands, titles and deeds appears under the rules on Summons. It was misplaced so they
place it under Rule 13 which is also misplaced.
NOTICE OF LIS PENDENS – notice of pending action or litigation.
This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against the
whole world against sale or mortgage of the property under litigation. And whoever deals with it is accepting
the risk. Anybody who buys it is gambling an the outcome of the case. He cannot claim he is the mortgagee or
buyer in good faith because there is a notice.
I will file a case for recovery of a piece of land and the title is in your name. There is a danger that you will
sell the land to others who know nothing about the case. So if I win the case and try to recover it to the buyer,
the buyer will say he bought the land in good faith, “I did not know that there is a pending action concerning
this land.” And under the law, he is protected because he is a buyer in good faith and for value. This is if there
is no notice of lis pendens. The other risk is that the owner of the land will mortgage his property.
A person buying a property with a notice of lis pendens is buying it subject to the outcome of the case. So
you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception:
Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that “The plaintiff and the defendant may register when affirmative relief
is claimed in this answer.” In such case, a defendant may register and normally it is done when
there is a counterclaim. The defendant is also interposing a defense with the same property.
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Take note that the action in this case affects the right of possession over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the
order from the court and generally the court cannot issue the order until the case is finished or
until the final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis pendens
even when the case is not yet terminated. One of which is contemplated under Section 14: “After proper
showing that the notice is: [a] For the purpose of molesting the adverse party; or [b] It is not
necessary to protect the rights of the party who caused it to be recorded.” In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered in the
name and possessed by the defendant. The case has been going on for more than 1 year, the
plaintiff has been presenting evidence he plaintiff has not yet shown that he has right over the land.
HELD: So there is no more basis of notice of lis pendens because your purpose is to harass the
defendant for over a year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending
and unresolved, the proper court has the authority to determine whether to cancel it under peculiar
circumstances, e.g., where the evidence so far presented by the plaintiff does not bear out the main
allegations in the complaint.”
more in detail when we reach Rule 16 on Motion to Dismiss.
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Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment
of the requisite legal fees, the clerk of court shall forthwith issue the corresponding
summons to the defendants. (1a)
Ano ang plural ng “summons”?
Meron bang plural yan? “Summonses”?
I think it is still “summons,”
whether singular or plural. The verb is, of course, to summon – tawagin mo. Summons is a noun, a legal
term. But actually, there is a similarity in meaning because you are being called to answer in a case.
Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on Criminal
Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil cases, when a
complaint is filed in court, the court will issue what is known as a summons under Section 1.
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk
of court under seal, and contain: (a) the name of the court and the names of the
parties to the action; (b) a direction that the defendant answer within the time fixed
by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons. (3a)
Q: Define Summons.
A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose of
securing his appearance therein. (Ballentine’s Law Dict., 2nd Ed., p. 1250)
Q: What is the purpose of summons?
A: The service of summons enables the court to acquire jurisdiction over the person of the defendant.
(Echevarria vs. Parsons Hardware, 51 Phil. 980)
Q: How does the court acquire jurisdiction over the person of the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing
his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil.
523)
Q: What is the effect if a defendant is not served with summons?
A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal-latan, 13
Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479)
Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new
summons on the additional defendant?
A: YES. When an additional defendant is included in the action, summons must be served upon
him for the purpose of enabling the court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the amendment in the complaint (Fetalino vs.
Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party
(under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new
summons on the substituted defendant?
A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is
only a continuation of the personality of the original defendant. Just serve the copy of the order,
where he is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the
plaintiff, is there a necessity that another summons be issued and served based on the amended complaint? Or
is the summons of the original complaint sufficient?
ANS: It depends on whether the amendment was made before or after defendant’s appearance in the
action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an answer to the complaint.
Appearance in civil cases does not mean that you are there and show your face to the judge.
That is not the meaning of the word “appearance”. Appearance means filing something in court
which would show that the court has jurisdiction over your person, like the filing of an answer.
When the defendant filed an answer through his lawyer, there is now appearance of the
defendant.
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a.) If the defendant has not filed answer to the original complaint there must be another
summons issued on the amended complaint. A new summons must be served all over again
based on the amended complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the original complaint or he has already
appeared in the action, and after that the complaint is amended, there is no need of issuing
new summons on the amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961)
Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was served
with summons on the original complaint and before he could answer, there is now an amended complaint, so
there will be new summons on the amended complaint, what is the period to file an answer?
A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an
answer to the amended complaint upon receipt of the amended complaint and the summons.
Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an
amended complaint, what must the plaintiff do?
A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of
the amended complaint together with the motion to admit it. Just serve the defendant a copy of the amended
complaint with a copy of the order admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the
defendant to file an answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the
amended complaint, but from receipt of the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an answer by the defendant.
However, according to the SC in the case of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS
164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of an answer. When
defendant files a motion for extension of time to file his answer, that is already an
appearance in the action. If a defendant files a motion for Bill Of Particulars under Rule
12, that is already considered as an appearance in the action.
SEC. 3 By whom served – the summons may be served by the sheriff, his deputy, or
other proper court officers, or for justifiable reasons by any suitable person
authorized by the court issuing the summons (5a)
Q: Who can serve summons? Who are authorized by law to serve summons?
A: Under Section 3, the following:
1.) Sheriff;
2.) Deputy sheriff;
3.) Other proper court officer (court employees);
4.) For justifiable reasons, by any suitable person authorized by the court
NOTE: Policemen cannot validly serve summons unless authorized by court. (Sequito vs. Letrondo, L-11580,
July 20, 1959)
EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I don’t think the sheriff would like to go
there. But there are people who go there, like the natives. So Barangay Captain Acelar will be asked to be
deputized by the court to serve and he will be taught how to do it. So, he will become a sort of special court
officer for that purpose. But there must be a court order.
Before, there was a complaint which had to be served in Brgy. Tapak, Paquibato. Have you heard of that
place? It is still part of Davao City but I don’t think you have been there. To go there you have to pass to
Panabo first. You have to get out of Davao City and then re-enter Davao City and then up to certain point land,
maglakad na ng isang araw before you can reach that place. Mag-horse back ka. Makita mo doon mga natives.
I don’t think a sheriff would bother to go there. Baka mawala pa siya. He has not even heard of the place. So,
he can recommend a barangay captain or a policeman. These are allowed during abnormal situations.
SEQUITO vs. LETRONDO
L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a remote area and the question that was
asked is whether he is authorized.
HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy
sheriff, and he is not a proper court officer. He belongs to the PNP. And PNP is under
the executive branch and not a part of the judiciary.
However, there is no problem if he is the only one in that area whom we can depend on. All you have to
do is get a court order deputizing the police officer. So he will fall under no. 3. But without such
court order, he is not among those mentioned in Section 3.
Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday, Sunday,
or holiday, and must be within office hours? Can you challenge the validity of the service of summons on the
ground that it was not effected on a working day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS
214 SCRA 688
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HELD: The service of summon is valid because the service of summons is
MINISTERIAL. Service of summons may be made at night as well as during the day, or
even on a Sunday or holiday because of its ministerial character.
SEC. 4 Return – When the service has been completed, the server shall, within
five (5) days therefrom, serve a copy of the return, personally or by registered mail,
to the plaintiff’s counsel and shall return the summons to the clerk who issued it,
accompanied by proof of service (6a)
The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to
inform the court what has happened – was he able to serve the copy of the complaint, together with the
summons to the defendant? If so, on what day? The duty of the sheriff after service of summons is that he
should make a report to the court as to what happened. That is what is called a sheriff's return. EXAMPLE:
“Respectfully returned to the court with the information that defendant was personally served with summons
on this date and on this time as shown by his signature on the face of this original copy.” Or, “Respectfully
returned to the court with the information that defendant cannot be served with summons because the
defendant had already moved from the address indicated in the complaint and therefore he cannot be located.”
There must be a report because that will determine when the period to file an answer will start to run. Or, if
he failed to serve it for one reason or another, like for example, the defendant is no longer residing in that place
and you cannot find him, at least you must also return the summons to the court and make a report that you
cannot serve the summon. That is what you call the Sheriff’s Return under Section 4, Rule 14.
He must also furnish a copy of his report to the plaintiff’s lawyer so that the plaintiff’s lawyer can determine
what is the deadline for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a summons is returned without being served
on any or all of the defendants, the server shall also serve a copy of the return on
the plaintiff’s counsel, stating the reasons for the failure of service, within five (5)
days therefrom, in such case, or if the summons has been lost, the clerk, on demand
of the plaintiff, may issue an alias summons (4a)
Now Section 5 contains this new requirement that the serving
officer shall also serve a copy of the
return on the plaintiff's counsel stating the reasons for the failure of service within 5 days therefrom. Because
most sheriff, they did not tell the lawyer what happened eh! They should tell the lawyer what happened so that
if the summons was not served, the lawyer can file a motion for issuance of an alias summons, like he cannot
serve the summons because the defendant is not already in the address given, lumipat na. That becomes the
problem of the plaintiff and his lawyer. So that is now the requirement.
Q: What happens if the summons is returned unserved on any or all of the defendants?
A: The server shall serve also a copy of the return on the plaintiff’s counsel, stating the reasons for the
failure of service
Q: For what purpose?
A: So that the plaintiff’s lawyer will have to look now for the defendant and once he finds the
correct address, he has to inform the court of the new address so that a new summons can be
issued on the new address. The second summons is what lawyers call an ALIAS SUMMONS – if the
first summons was lost, upon being informed, the clerk of court will issue another summons known
as an ALIAS SUMMONS.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS:
Now let’s go to the general modes on service of summons. This is a very important portion of Rule 14.
Q: How is summons served?
A: There are three (3) modes of service of summons (on individual defendant):
1.) Section 6 – Service in person on defendant;
2.) Section 7 – Substituted service (Section 7); and
3.) Sections 14, 15, 16 – Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
SEC. 6. Service in person on defendant – Whenever practicable, the summons shall
be served by handing a copy thereof to the defendant in person, or if he refuses to
receive and sign for it, by tendering it to him (7a)
Q: How is service in person done?
A: It is effected by (a) handing a copy thereof to the defendant in person, or (b) if he refuses to receive and
sign for it, by tendering it to him. The summons must be served in person. This is literal, ha? No substitute – to
the defendant mismo. Hindi puwedeng ibigay sa asawa, sa anak or sa kasambahay.
Q: Do you have to serve it to the defendant in his office or in his house?
A: NO. You can serve it wherever he may be found. And the law does not care where to do it.
EXAMPLE: I am the sheriff. I’m looking for you to serve summons in a case and while walking along New
York Street, I saw you inside a restaurant. I entered the restaurant and served the summons there. Then you
say, “Not here. Give it to me at home”. Under the law, service is in person. There is no need for me to go to
your house. I can serve the summons wherever I find you.
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Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he refuses,
what will I do?
A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law,
you are served. The court has already acquired jurisdiction over your person.
The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false.
You cannot defeat a court process by refusing to accept it. May mga sheriff pa nga na bastos: “Dili ka
magtanggap? Basta ilagay ko ito sa tabi mo, i-report ko sa court na binigyan kita, ayaw mong tanggapin, ayaw
mong mag-pirma.” And under the law, from that moment, you are bound. So, matakot man yang defendant ba.
Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he is bound despite his
refusal to accept it.
Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the
1997 Rules, the ’personal service’ was changed to ‘SERVICE IN PERSON’. They just changed the words so that
it cannot be confused with Rule 13 because in Rule 13, there is also personal service. But that is not service of
summons but service of pleadings, motions, etc. Para huwag magkagulo, the personal service was changed to
service in person. Because service under Rule 13 is also personal service to the secretary but here in Rule 14, it
is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7 –substituted service – because in Rule
13, there is also substituted service. Why did they not change to avoid confusion? Maybe they overlooked it.
Second Mode: SUBSTITUTED SERVICE (Section 7)
What is substituted service?
SEC. 7 Substituted Service – If, for justifiable causes, the defendant cannot be
served within reasonable time as provided in the preceding section, service may be
effected
(a) by leaving copies of the summons at the defendant’s residence with some
person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendant’s office or regular place of business with
some competent person in charge thereof (8a)
If the defendant cannot be served personally or in person under Section 6, the sheriff may resort to what is
known as SUBSTITUTED SERVICE OF SUMMONS under Section 7. This time, you can course it to somebody else.
The place is important and the person to whom you will serve it.
On service in person under Section 6, it is immaterial where you find the defendant. Basta ang importante,
kung saan mo siya nahuli. For example, you want to catch him on a Sunday because he is in the cockpit, eh di
i-serve sa cockpit. Basta importante, in person! Hindi ibig sabihin pupunta ka sa bahay lang. No, dahil mahirap
mahuli minsan eh.
But if you want resort to substituted service under Section 7), you better have to do it:
1.) at the defendant’s residence with some person of suitable age and discretion there
residing therein. This time, the place is important; or
2.) in his office or regular place of business with some competent person in charge thereof,
like the manager or the foreman.
So, if I cannot serve you the summons personally, I cannot find you, balik-balik ako hindi kita maabutan.
Palagi kang wala sa bahay niyo. But everytime I go there, your wife or husband is around, I can leave the
summons with your wife or husband, or the housemaid or houseboy, provided they are of suitable age and
discretion. Puwede sa anak? Yes, again basta of suitable age and discretion. Ang sheriff kailangang tantiyahin
din niya. Ito bang anak may buot na ni or wala pa?
SEQUIOTO vs. LETRONDO
L-11580, July 20, 1959
FACTS: Summons was served by the sheriff on the defendant’s daughter, a 12-year old and a
grade four pupil. The child threw the summons away. The father did not receive the summons, and
he was declared in default.
HELD: The service of summons is void because defendant’s daughter, under the circumstances,
is not a person of suitable discretion.
Q: Suppose, the sheriff goes to the defendant’s house and says, “Is this the residence of Mr. Juan dela
Cruz?” “Yes.” “Is he around?” “No, he left for work, but he will be back 5 hours from now.” The sheriff left the
summons to the wife, sufficient of age and discretion. In other words, the sheriff resorted to substituted service
of summons under Section 7. Is there a valid substituted service of summons? Can a sheriff resort to Section 7
(substituted service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section 6 (Service in person). The sheriff
has to try several times to reach the defendant in person. Sheriff is not allowed to resort to
substituted service without attempting service in person several times.
The law is very clear – “if for the justifiable causes, the defendant cannot be served within a reasonable
time…” So, that is the condition.
Q: So what is the condition?
A: Substituted service of summons can only be applied by the sheriff if there is failure of
personal service within reasonable time for justifiable causes [under Rule 14, Section 7]. So is the
wife says, “come back tomorrow,” so you have to come back tomorrow and you cannot yet serve
substituted service of summons.
139
Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around, is
substituted service of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person
than substituted. Substituted service according to SC, should only be resorted to if there is failure of personal
service within reasonable time for justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. COURT OF APPEALS
214 SCRA 417
HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return,
his return must specify that “I have tried many times to resort to personal service, but he cannot do
it”. He must outline his efforts to apply Section 6, otherwise the return is defective.
“Impossibility of prompt service should be shown by stating the efforts failed. This statement
should be made in the proof of service. This is necessary because substituted service is in
derogation of the usual method of service.”
Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I
did not explain, there is still a valid service but you must explain in court. There is a presumption that you did
not exert efforts. To make it a complete return, you must outline several attempts to make personal service.
[Substituted service of summons may still be considered as VALID even if the sheriff failed to
state in his return of the facts of the impossibility of prompt service if the server subsequently
explains in court, by giving testimony, the facts why he resorted to a substituted service. The
plaintiff should not be made to suffer for the lapses committed by an officer of the court]
TOYOTA CUBAO INC. vs. COURT OF APPEALS
October 23, 1997
HELD: “A law prescribing the manner in which the service of summons should be effected is
jurisdictional in character and its proper observance is what dictates the court’s ability to take
cognizance of the litigation before it. Compliance therewith must appear affirmatively in the return.
It must so be as substitute service is a mode that departs or deviates from the standard rule.
Substitute service must be used only in the way prescribed, and under circumstances authorized by
law.”
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]
AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule 14 with substituted service of pleadings,
orders and other papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be made by
delivering personally a copy to the party or his counsel, or by leaving it in his office
with his clerk or with a person having charge thereof. If no person is found in his
office, or his office is not known, or he has no office, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient age and discretion then
residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as
substituted service. Service of summons is governed by a different rule (Rule 14) from service of pleadings,
judgments and other papers (Rule 13).
Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is complete at the
time of such delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in
person, then you serve the summons at the residence of the defendant with some person of suitable age and
discretion residing therein or by leaving copies at the defendant’s office or regular place of business with some
competent person in charge thereof. That is substituted service of summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or service
by registered mail have failed, then serve it on the clerk of court. And that is known as substituted service.
In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons
be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who will
serve the summons to the defendant in Manila.
So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the
similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16)
140
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. - Judgments, final
orders or resolutions shall be served either personally or by registered mail. When a
party summoned by publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also by publication at the
expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the
defendant failed to file an answer, the decision can also be served upon him by publication.
Q: What are the instances where a defendant may be served with summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or whereabouts are unknown. That
is what you call suing an unknown defendant. Or, the defendant is known pero hindi na makita.
He may be in Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines.
That is the important condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are unknown. 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, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court
may order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 – when
you file a case against an unknown defendant is allowed. But of course, he is unknown, you have no
idea where he is staying; and
2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent
inquiry.
EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know
where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the exact address is
unknown and you want to sue him.
Q: In the above case, is the plaintiff authorized to have the summons effected by publication?
A: Take note that to avail of summons by publication, there must be leave of court. You must
file a motion, under Rule 14, for permission to have defendant summoned by publication and the
court will issue an order allowing the defendant be served with summons by publication where the
complaint and the summons be ordered published. The service may be effected upon him by publication
in a newspaper of general circulation and in such places and for such time as the court may order.
“Of general circulation and in such places and for such time as the court may order.” Hindi naman
kailangan sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: “We learned that he is in
Cebu pero saan sa Cebu, we do not know.” The court may order the publication to be published in a local
newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint. How many times? Bahala
na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the presumption is mabasa yan ng
defendant or at least somebody who must have read it will inform the defendant. So, the law requires that you
must file a motion and ask the court to allow service of summons by publication.
Now, one thing that you have to remember is, the whereabouts of the defendant is unknown,
but he is in the Philippines. That is the condition. If he is in the United States, this will not apply.
What is contemplated by Section 14 is that the address of the defendant is unknown but it is
positive that he is in the Philippines.
ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared and
the last time you heard, he is residing somewhere in General Santos City. So you wanted to sue by having the
summons under Section 14 because his exact whereabouts is unknown. So you file a motion for leave to serve
summons by publication under this rule. The question is, should the court allow it? Of course the tendency is to
say “yes” because his whereabouts is unknown and cannot be ascertained by diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be located
anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in personam, can
the plaintiff resort to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ
73 Phil. 579
HELD: In this case, SC said service of summons is possible even if the action is in personam
because service by publication when the whereabouts of the defendant is unknown is allowed
whether the case is in personam or in rem. It is proper in all actions without distinction provided,
the defendant is residing in the Philippines but his identity is unknown or his address cannot be
ascertained.
141
So if we will follow this case what will be our answer? YES, because it is allowed in any action without
distinction.
PANTALEON vs. ASUNCION
105 Phil 755
HELD: NO, because service of summons by publication under this section is allowed
only where the action is in rem or quasi in rem, not in personam. In order to bind the
defendant there must be service of summons on him. Personal, he must know. But in
actions in rem quasi in rem, pwede.
“It is a well settled rule in constitutional law that an action in personam, personal service of
summons within the Philippines (forum) is essential in the acquisition of jurisdiction over the person
of the defendant who does not voluntarily submit himself to the authority of the court.”
In other words, summons by publication is not consistent with the due process clause of the bill
of rights because it confers court jurisdiction over said defendant who is not in the Philippines. So
service of summons by publication of the defendant who cannot be found in the Philippines will be
violative of the due process clause that he must be informed personally. He must be given a chance
under due process – to be deprived of his property with due process of law. So if we will follow the ruling in this
case, the answer would be NO because the action is in personam (collection case). So nag-conflict na.
CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA
38 SCRA 369
ISSUE: What is the remedy if you are a creditor and you want to sue your debtor and serve
summons by publication but you cannot do it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case from in personam to in rem or
quasi in rem. How? If you cannot find the defendant but he has properties left, you can have that
properties attached under Rule 57, Section 1 so that you can acquire a lien over said properties.
Now that it is attached, civil action is converted from in personam to quasi in rem because you
already acquire a lien over the property so it is quasi in rem. You can now ask the court to effect
summons by publication..
“The proper recourse for a creditor in the same situation as petitioner is to locate
properties, real or personal, of the resident defendant debtor with unknown address and
cause them to be attached under Rule 57, Sec. l(f), in which case, the enactment
converts the action into a proceeding in rem or quasi in rem and the summons by
publication may then accordingly be deemed valid and effective.” So kahit isang
bisekleta para lang ma-convert ang action.
MAGDALENA ESTATE INC. vs. NIETO
125 SCRA 758
SC traced the history of this question…we reiterate CITIZEN and PANTALEON, the action must
be in rem or quasi in rem. [That is why just read this case because it is a complete summary of
what the SC said earlier. And of course after it, from time to time, this issue re-surfaces.]
CONSOLIDATED PLYWOOD vs. BREVA
166 SCRA 589 (Davao case)
HELD: Judge Breva fell into the error of allowing service of summons by publication by allowing
it in an ordinary collection case. SC said you cannot do that, the action must be in rem or quasi in
rem. Therefore the default judgment was rendered null and void because of lack of proper service
of summons to the defendant.
Q: What is the important doctrine based from the foregoing cases?
A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem.
If the action is in personam, like of collection of a sum of money, service of summons by
publication to the defendant is improper. The action should be action in rem or quasi in rem.
Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find the
defendant and you want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any
property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment. Now,
your action is converted to quasi in rem. You can now file a motion for service of summons by publication.
(Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance Co., vs. Melencio-Herrera, 38 SCRA 369;
Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589)
In all these cases, the SC ruled that to validly serve summons by publication on a defendant
who is in the Philippines but whose name is not known or whereabouts is not known, the action
must be in rem or quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine. Why?
You read the opening of Section 14: “In any action…” you notice, “in any action where the defendant is
designated as an unknown… ” You look at the old rules. Can you find the phrase “in any action”? You look and
compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is designated as an
unknown owner, or the like, or whenever the address of a defendant is unknown and
cannot be ascertained by diligent inquiry, service may, by leave of court be effected
upon him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.”
142
In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated there
(Section 16, old rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON, etc. that the
action must be in rem or quasi in rem.
But look at the new rule on Section 14 – “in any action.” What does that mean – na puwede na ang action in
personam? Is the intention of this clause to abrogate the previous ruling in PANTALEON, MAGDALENA ESTATE,
CONSOLIDATE PLYWOOD? If that is the intention, we are going back to the original ruling laid down in the earlier
case of FONTANILLA vs. DOMINGUEZ which preceded all the other cases.
In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions without
distinctions provided the defendant is residing in the Philippines but he is unknown or his address cannot be
ascertained. But the FONTANILLA ruling was abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY,
MAGDALENA ESTATE cases. That is why to me, this is a very controversial issue whether Section 14 of Rule 14
applies only to cases in rem or quasi in rem in these decisions or it is now obsolete, or it is now applicable
whether in personam or in rem or quasi in rem.
Actually, I asked that question in remedial law review. I don’t care how they answered it. I just want to find
out if they can detect the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka. Pagsinabi nila
“in any action,” OK, tama ka rin. Some even said, based on decided cases but there is an amendment in the
law, in other words nakita niya. But 70% did not say the issue. Kung ano-anu ang sinagot! 30% saw the point.
Some answered based on MAGDALENA, some on FONTANILLA by saying with the amendment, the ruling in
MAGDALENA is wala na yan. To my mind, either way, I will take it as a completely correct answer because it is
not pointed out what is the really correct answer.
So I was wondering what is the meaning of this – “in any action” – whether there is an intent to return to the
old rule and cancel the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose Feria, in his
note, cannot answer it. Sabi niya, “in any action but there is a case, decided in MAGDALENA...” He is the author,
one of the authors, but he cannot explain the intention. Sabi niya: “the SC earlier ruled…” I asked, “but why did
you insert that?” Kaya to my mind, it is still a question mark. Maybe it is just an inadvertent amendment
without any intention to abrogate the ruling in MAGDALENA, PANTALEON, etc. But maybe that is the intention.
So, let us wait for the proper case at the right time to find what is the intention of the phrase “in any action .”
BALTAZAR vs. COURT OF APPEALS
December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the address of
the corporation but the corporation was no longer there. It moved to another place. Subsequently,
the sheriff returned the summons to the court. Plaintiff Baltazar filed a motion for leave to serve the
summons and a copy of the complaint upon defendant Good Earth by publication
ISSUE: Can there be a proper service by publication in this case?
HELD: NO. Service by Publication (Section 14) will not apply because there was no
diligent inquiry made by the sheriff.
“Under Section 14, therefore, petitioner must show that the address of Good Earth was
‘unknown’ and that such address could not be ascertained by diligent inquiry. More importantly, We
do not believe that the acts of the sheriff satisfied the standard of ‘diligent inquiry’ established by
Section 14 of Rule 14. The sheriff should have known what every law school student knows, that
Good Earth being a domestic corporation must have been registered with the Securities and
Exchange Commission and that the SEC records would, therefore, reveal not just the correct
address of the corporate headquarters of Good Earth but also the addresses of its directors and
other officers.”
SERVICE BY PUBLICATION UNDER SECTION 15
(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is not physically around he must be served
with summons even if he is abroad and that is what is called extraterritorial service. We go back to the
basic question:
Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not around
physically?
A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person
EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the
plaintiff who is in the Philippines or the properties of the defendant are in the Philippines. And the
venue is where the plaintiff resides or where the property is situated. That is found in Section 3,
Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the defendants do not
reside and is not found in the Philippines, and the action affects the personal status of
the plaintiff or any property of said defendant located in the Philippines, the action may
be commenced and tried in the court of the place where the plaintiff resides, or where
the property or any portion thereof is situated or found.
Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4, how
will you serve summons?
A: This is answered by Section 15:
143
Sec. 15. Extraterritorial service. When the defendant does not reside and is not
found in the Philippines, and the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service
as under section 6; or by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer. (17a)
Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not found
in the Philippines? The other way of asking is, when may a defendant be sued and served with summons by
extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is not
found in the Philippines may be sued and summons served by extraterritorial service, provided the case is in
rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for compulsory recognition or
acknowledgement at least to improve his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is, property within the Philippines in
which the relief demanded consists, wholly or in part, in excluding the defendant from any
interest therein; or
4.) When the property of the defendant has been attached within the Philippines – that is the
MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be
filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the assumption of
the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines, the action must be in
rem or quasi in rem. That is their similarity – the action must be classified as in rem or quasi in rem. That is if
we follow the MAGDALENA ESTATE ruling.
Q: What is the difference between Section 14 and Section 15?
A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the
country but his exact whereabouts is unknown, whereas in Section 15, he is really out of the
country and is no longer residing here.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15?
A: Service may, with leave of court, be effected in the Philippines:
a.) By personal service under Section 6;
b.) by publication in a newspaper of general circulation in such places and for such time as
the court may order, in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant; or
c.) In any other manner the court may deem sufficient. (Carriaga vs. Malaya, 143 SCRA 441)
a.) modes of extraterritorial service; PERSONAL SERVICE
c.f. Section 6 Rule 14 – Sheriff, deputy sheriff, officer of the court, other persons authorized by court with
valid order. The court will order that he will be served with summons just like in Section 6. Paano? We will ask
the court to allow summons to be served outside the Philippines by personal service by sending the sheriff to
America. Bigyan siya ng visa, round trip ticket with pocket money. That is personal service. But that is very
expensive. That could be done pero impractical.
Or, I would like to sue a defendant who is there. I have a friend who is a balikbayan and he knows where
that defendant is residing. So I will ask the court that the defendant who is residing in California be served with
summons personally through this person. As if he is deputized or he can send the summons to the Philippine
embassy with a request for an employee of the embassy to serve the summons personally.
b.) modes of extraterritorial service; BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION
IN SUCH PLACES AND FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A COPY OF THE
SUMMONS AND ORDER OF THE COURT SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN
ADDRESS OF THE DEFENDANT
The second manner is by publication which is similar to Section 14. The court will order the summons and
complaint to be published in a newspaper of general circulation in such places and for such time as the court
may order. In which case a copy of the summons and order of the court shall be sent by registered mail to the
last known address of the defendant.
144
So, aside from publication, another copy will be sent by registered mail to his last known address. So, meron
ng publication, meron pang registered mailing of copy of the summons.
SAHAGUN vs. COURT OF APPEALS
198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of court,
summons was served through publication by ordering to be published for 3 weeks in the Philippine
Daily Inquirer. Another copy will be sent to his last address. Here defendant questioned the
publication. According to him, publication should be in a newspaper in LA, not the Philippines. How
can I be expected to read it when it is published in the Philippines, nobody will bring it to my
attention. But if it is published here, the probability that I read it is stronger or my neighbor will
bring it to my attention.
ISSUE #1: Is the contention of the defendant correct?
HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign
newspaper. What is says is a newspaper of general circulation in such places and for such time as
the court may order. Well, if the court will order that it should be published in a newspaper in LA,
puwede rin. If it orders that it should be in a local newspaper, puwede rin because the law does not
say ‘only such places’.
ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we will require courts to order the
publication in a foreign newspaper, then we will require the court to have a list of all the newspaper
in LA and our courts will be required to know the rules and rates of publication in LA and suppose
the same thing happens to a defendant in San Francisco, the courts are required to have a list, rules
and rates of publication in said place. And you can imagine if we have to do that in every city in
every country in the world. Naloko na. Imagine the trouble? It is requiring the court too much.
“In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial
service of summons, neither should such publication in a local newspaper of general circulation be
altogether interdicted since, after all, the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order. If the trial court should be required to
resort to publication in a foreign newspaper it must have at hand not only the name and availability
of such newspaper or periodical. we can very well anticipate the plethora of problems that would
arise if the same question on nonresident defendants is replicated in the other countries of the
world.”
ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring
jurisdiction over the person of the defendant?
HELD: NO, even if you will publish the summons a hundred times in a newspaper, still
the Philippine court will not acquire jurisdiction over the person of the defendant
because it is simply out of the country. Even if he is served with summons, our
processes have no effect outside Philippine territory.
Actually, there is no need to acquire jurisdiction over the person of the defendant.
What is important is that res is in the country so we can enforce the judgment so that
ownership may be transferred to plaintiff. So, hindi kailangan ang jurisdiction over his
person.
ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to
publish but just the same the court will not acquire jurisdiction over his person?
HELD: The purpose of publication is to comply with the requirement of due process.
He should be informed before he loses his property. Remember that he has properties in the
Philippines which you can want to take away form him. Remember the principle that if there is no
way for the court to acquire jurisdiction over the person of the defendant, the substitute is
jurisdiction over the res, and the res is property here. So, the judgment will not be useless and it
can be enforced. But at least, the owner who is abroad should be informed about it.
“Service of summons on a nonresident defendant who is not found in the country is required,
not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the
requirements of fair play, so that he may be informed of the pendency of the action against him and
the possibility that property in the Philippines belonging to him or in which he has an interest may
be subjected to a judgment in favor of a resident, and that he may thereby be accorded an
opportunity to defend in the action, if he be so minded. The only relief that may be granted in such
an action against such a nonresident defendant, who does not choose to submit himself to the
jurisdiction of the Philippine court, is limited to the res.”
That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by publication,
any judgment that the court can render is only good for the res. But if he submits now to the jurisdiction of the
court by filing an answer or by hiring a lawyer in the country, the court can now render also a judgment in
personam against him. But if he will not submit, ok lang because anyway, the res is here. [bahala siya… kung
san siya masaya, ti suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and
damages. Well, the claim for recovery of land is in rem. The claim for damages is in personam. He
is summoned by publication and based on the SAHAGUN ruling, the court can only render judgment
insofar as the land is concerned. It cannot render judgment on the damages because that is in
personam. But if he files an answer, he is now submitting his person to the jurisdiction of the court.
There could now be a valid judgment not only on the res but also on the damages. That was the
explanation in the case of SAHAGUN.
The relief is limited to the res so there could be no relief for damages unless he voluntarily submits himself
to the jurisdiction of the court.
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c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY DEEM
SUFFICIENT
That is a very general term. A good example of that was what happened in the case of
CARRIAGA, JR. vs. MALAYA
143 SCRA 441
FACTS: Plaintiff files a case against his father in the US who has no intention of coming back in
the Philippines, for compulsory acknowledgement or recognition as an illegitimate child. And he is
suing as an indigent litigant. My golly! How can you ask him to resort to publication? He cannot
even pay the filing fee!
Suppose the court will say, “Do you know the address of your father in the U.S.?” Plaintiff, “Yes,
and I even know the zip code.” Judge, “If we will mail the complaint and the summons by registered
mail in the post office, that will cost you P15 to P30. Kaya mo ba?” Plaintiff, “Siguro. I will raise that
amount.”
That is what happened in the case of MALAYA. They mailed the summons abroad and the
defendant received it. The defendant questioned.
ISSUE: Is there a valid service of summons under Section 15 through registered mail?
HELD: YES. It would fall under “In any other manner the court may deem sufficient.” And that is
what exactly happened in this case at bar where the court allowed the service of summons abroad
by a registered mail. Of course, the defendant received the letter but still challenged the jurisdiction
of the court, the manner of service of summons on the ground that it is not by personal service or
publication but by registered mail.
And since the defendant has received the summons, due process has been served and the case
can now proceed.
So in other words, it is very queer. The SC said extraterritorial service of summons by registered
mail may fall under the third mode of service under Section 17 (now, Section 15) “In any other
manner the court may deem sufficient.” There is no denial of due process to be informed because
you were informed so you cannot resort to technicality.
Q: Is there such a thing as service of summons by registered mail under Rule 14?
A: NONE. Only personal service or by publication. Unlike in Rule 13, when you serve and file a
pleading there is such a thing as service by registered mail.
Q: But how come in MALAYA case it is allowed?
A: Because it was considered as falling under the general phrase, “In any other manner the court may deem
sufficient” not because it is allowed but the court considered it as deemed covered under the phrase.
Q: If the court allows service of summons abroad, then what is the period to file an answer?
A: The non-resident is given not less than 60 days to file an answer. It is given a longer period in order
to give him more time. This is related with Section 1 rule 11: “The defendant shall file his answer to the
complaint within 15 days after service of summons, UNLESS a different period is fixed by the court.”
And take note that under Section 17, there must be a motion to effect service of summons by publication.
Sec. 17. Leave of court. Any application to the court under this Rule for leave to
effect service in any manner for which leave of court is necessary shall be made by
motion in writing, supported by affidavit of the plaintiff or some person on his behalf,
setting forth the grounds for the application. (19)
He must file a motion under Section 17 to effect service of summons by publication. The court will then
issue an order.
Now in 1996, there was a case decided by the SC on the extraterritorial service of summons. The case of
VALMONTE vs. COURT OF APPEALS
252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing
abroad. Her husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines.
He is Atty. Valmonte – yung mga Valmonte sa checkpoint cases in Constitutional law. He is an
activist-lawyer. So, his wife is residing abroad but he is here, because he is practicing in the
Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know
that you have to implead all the co-owners. The summons intended for Lourdes was served on her
husband in the latter’s law office because anyway, the husband is here.
ISSUE : Was there a valid service of summons on Lourdes Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69.
So, it is an action quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a
non-resident who is not found in the Philippines, summons on her must be in accordance with Rule
14, Section 15. So you must follow the modes of service under Section 15 because the action is
quasi in rem.
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In this case, the service of summons was not effected personally because it was served on the
husband. There was also no publication. The only possibility is the third one, “in any other manner
the court may deem sufficient.”
But the third mode applies only when you are serving the summons abroad. You cannot apply
this when you are serving the summons in the Philippines. So it does not also fall under the third
mode. This mode of service, like the first two, must be made outside of the Philippines such as
through the Philippine Embassy in the foreign country where the defendant resides.
REASON #2: Under Section 17, leave of court is required when serving summons by publication.
There must be a motion where the court will direct that the summons be served in that manner.
In this case, was there any motion filed here? Wala man ba. Was there any order of the court
authorizing it? Wala rin. So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the defendant is a non-resident and
being served abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer
the complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the answer. Therefore, there was an
erroneous computation of the period to answer.
“Finally, and most importantly, because there was no order granting such leave, Lourdes
Valmonte was not given ample time to file her Answer which, according to the rules, shall be not
less than sixty (60) days after notice. It must be noted that the period to file an Answer in an action
against a resident defendant differs from the period given in an action filed against a nonresident
defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from
service of summons, while in the latter, it is at least sixty (60) days from notice.”
So those are the three main reasons cited by the SC on why there was improper service of summons on
Lourdes Valmonte under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any action is
commenced against a defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be also effected out of
the Philippines, as under the preceding section. (18a)
Q: What is the main difference between defendant in Section 15 and in Section 16?
A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16
defendant is residing in the Philippines but temporarily out of the Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out of
the Philippines. I can sue her but it will take months before she come back. The problem is, your action will
already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in Section 15 – through personal
service, by publication, and in any other manner the court may deem sufficient. So one option is to
wait for him to come back and then serve the summons personally.
One of the leading case on this type of defendant was in the old case of:
MONTALBAN vs. MAXIMO
22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will
be out for so many months. Naga-tour ba! It was at that time when the summons was served in his
residence. Well of course, he is not there. But there was somebody left in the house. So, the sheriff
said, “Who are you?” And the person said that he is the one in charge here. “When is your boss
coming back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to
substituted service under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted
na siya, meron ng execution. So he questioned the service of summons because under Section 16,
in relation to Section 15, summons must be served with leave of court by personal, publication or in
any other manner.
ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the
Philippines but temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15 where the
defendant has no residence here, you have a residence man. The sheriff resorted to
substituted service by leaving it to the person in charge, a person of sufficient age and
discretion because for justifiable reasons, substituted service is also applicable even if
the defendant is outside of the Philippines.
It is true that personal service of summons is preferred. But if the personal service
cannot be effected within a reasonable time, the sheriff can resort to substituted
service. And in your case, the sheriff cannot serve personally because you will be out of
the country for the next four or five months. So the sheriff has to resort to substituted
service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh, because I really had no
knowledge about the case. I failed to answer because you see, during the five months when I was
abroad, I never had the opportunity to call up the one I left behind. So there was no opportunity for
me to ask him what has been happening there. He has also no opportunity to tell me about what
happened because he does not know where I was. So I only learned about it after five months. So in
the name of equity please set aside the judgment.”
147
HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call
and tell the person left where you were. When you called up perhaps the person left could notify
you about the summons. You are very irresponsible! What kind of a person are you? You will leave
for abroad and you will not even bother to call up to find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant
doesn’t prevent the application of Section 7 in addition to Section 15. Summons can be served abroad just like
in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it does not say
MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely
an action for damages. So in Section 16, when residents are temporarily outside of the Philippines,
there could be also substituted service of summons in addition to Section 15 and the action could
be in personam as distinguished from Sections 14 and 15 where the action must be in rem or quasi
in rem.
So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in
the Philippines and only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY
Sec. 8. Service upon entity without juridical personality. When persons associated in an
entity without juridical personality are sued under the name by which they are
generally or commonly known, service may be effected upon all the defendants by
serving upon any one of them, or upon the person in charge of the office or place of
business maintained in such name. But such service shall not bind individually any
person whose connection with the entity has, upon due notice, been severed before
the action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical personality as defendant. 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.
In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of those
defendants is service for the entire entity already. You may also serve summons upon the person in charge of
the office of the place of business. He may not necessarily be the owner but in-charge of the office, he can be
served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him by the officer having the management
of such jail or institution who is deemed deputized as a special sheriff for said
purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?
A: Under Section 9, summons shall be served through the person in-charge of the jail like the jail
warden. The jail warden is automatically considered as deputized to serve it to the prisoner. It is not
necessary for the court officer to go into the jail and look for the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND INCOMPETENTS
Sec. 10. Service upon minors and incompetents. When the defendant is a minor,
insane or otherwise an incompetent, service shall be made upon him personally and
on his legal guardian if he has one, or if none, upon his guardian ad litem whose
appointment shall be applied for by the plaintiff.
In the case of a minor, service may also be made on his father or mother. (10a,
11a)
Relate this to Rule 3, Section 3 on Representatives as Parties – trustee of a trust, guardian, administrator,
etc.
Q: When you sue a minor or an insane, how is summons served?
A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in
the case of incompetent people or to the minor himself.
Q: The law says that “service shall be made upon him (the minor) personally” when he may not understand
what it is all about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY.
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Sec. 11. Service upon domestic private juridical entity. When the defendant is a
corporation, partnership or association organized under the laws of the Philippines
with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a)
PMGCTI
What do you mean by domestic? A corporation or association organized under Philippine laws.
Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks –
BPI, Security Bank - they can be sued because they are persons in the eyes of the law.
Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only
exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is supposed to
be the representatives. Therefore, common sense will tell that in case of a corporation, you have to serve the
summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?
A: In the case of a corporation, summons is served upon its officers.
Q: Who are these officers?
A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply “manager.” Now they added the word
“general.” But even in the old law, the word “manager” is interpreted as general manager. In a corporation,
there are so many managers like branch managers. General manager is the over-all manager of the
corporation throughout the Philippines. He is usually based in the head office.
CORPORATE SECRETARY. The prior law only used the word “secretary” but it has been interpreted as
corporate secretary, not the typist secretary. The corporate secretary is the custodian of the records of the
corporation. He is also a stockholder, because you cannot be a corporate secretary unless you are a
stockholder. The new law has already emphasized ‘corporate secretary.’ Before illiterate sheriffs used to serve
summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have changed the word to ‘treasurer.’ It is because
treasurer is actually an officer also. He is just like a budget secretary of the government. Cashiers are ordinary
employees which is more on clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He
takes care of the legal problems. In Manila, for instance, most of the corporations there have in-house counsels.
Not so much here in Davao. Like Ayala Corporation in Manila, they have internal legal counsel more or less 10
while Bank of Philippine Island has around 15. But these corporations hire lawyers from the outside when it
comes to sensitive cases. They are referred as external legal counsel.
The rule that summons may be served on internal legal counsel, although appearing for the first time in the
1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons upon an inhouse counsel of a corporation is valid. It binds the corporation under the ruling in the case of PHILIPPINE OIL
MKTG. CORP. vs. MARINE DEV’T CORP. (117 SCRA 879) and FAR CORPORATION vs. FRANCISCO(145 SCRA
197) that the in-house counsel if served with summons, there is a valid service, because anyway, if you serve it
to the general manager or the President, chances are it will also be referred to him kay siya man ang abogado.
So the in-house counsel is new and it confirms what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the summons on any of the directors of the
corporation – MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the Board here
is the Corporate Secretary. So, the directors, hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala na! Did you notice under the old law, there
is agent. The word agent was so broad and so general that the SC has actually included there so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served
to the Operations Manager of the corporation and the SC said the service was valid because he is considered as
an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant
General Manager of the corporation and the SC said that the service was valid because he is an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief
of Finance and Administrative Section of the corporation and the SC said that he will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO
(124 SCRA 434) the service of summon an employee employed in a corporation does not bind the corporation
because an ordinary employee who is not an officer is not considered as agent.
However, there are cases were the service of summons to an ordinary employee who is not an officer was
valid. Among which are:
149
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the
confidential secretary of the
President and the SC said the service is valid. She is qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN
FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere
clerk of the corporation. So, he is not even an officer. But the clerk gave it to the President. The SC said that the
defect is cured. The clerk could be considered as an agent. The need for speedy justice must prevail over
technicality. So, the word ‘agent’ has become very broad and it practically covers all corporate officers who are
presumed to be responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the law is very clear: President, managing
partner, general manager, corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no
valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the 1964 rules
when you are deemed to be an agent. But now, it is very specific. The intention of the new rules is to limit the
service to anyone of these. That is why they removed the word ‘agent.’
And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very
difficult to sue a corporation based in Makati if you are here in Davao because your summons has to be coursed
through them. And these people are not here! The President is not here; The General Manager, etc. They are all
based in the head office. Corporate Secretary, treasure, in-house counsel – Doon man ang opisina nila ba. The
ones based here are branch managers and they are now disqualified. If that is the intention of the law, my
golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not
give way.
Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa
ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that the court
has no jurisdiction when actually you are well aware already of the suit? You can say, let us go to reality. But it
can also be argued under the old law. Precisely, if the intention is to make everybody a responsible officer, then
the word ‘agent’ should have been retained. The intention of the law is to limit only to these people. So, both
sides can be defended.
Section 11 thus becomes another controversial provision. Whether this change has abrogated GESULGON,
FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered obsolete because of
this change. All those cases were decided based on the word ‘agent’ – are they agents? At least there is basis,
eh. Now, the word ‘agent’ is no longer there. That is why this is a controversial provision.
E.B. VILLAROSA LTD vs. BENITO
312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan
Luna St., Davao City and with branch offices at Parañaque and Cagayan de Oro City (CDO). Villarosa
and Imperial Development (ID) executed an Agreement wherein Villarosa agreed to develop certain
parcels of land in CDO belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of
Contract and Damages against Villarosa before the RTC allegedly for failure of the latter to comply
with its contractual obligation.
Summons, together with the complaint, were served upon Villarosa, through its Branch Manager
Wendell Sabulbero at the address at CDO but the Sheriff’s Return of Service stated that the
summons was duly served "E.B. Villarosa & Partner thru its Branch Manager at their new office Villa
Gonzalo, CDO, and evidenced by the signature on the face of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the ground of improper service of
summons and for lack of jurisdiction over the person of the defendant. Villarosa contends that the
RTC did not acquire jurisdiction over its person since the summons was improperly served upon its
employee in its branch office at CDO who is not one of those persons named in Sec. 11, Rule 14
upon whom service of summons may be made. ID filed a Motion to Declare Villarosa in Default
alleging that Villarosa has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the
summons and the complaint, as shown in the Sheriff's Return.
HELD: “We agree with Villarosa. Earlier cases have uphold service of summons upon a
construction project manager; a corporation's assistant manager; ordinary clerk of a corporation;
private secretary of corporate executives; retained counsel; officials who had charge or control of
the operations of the corporation, like the assistant general manager; or the corporation's Chief
Finance and Administrative Office. In these cases, these persons were considered as "agent" within
the contemplation of the old rule.”
“Notably, under the new Rules, service of summons upon an AGENT of the corporation is NO
LONGER authorized.”
“The designation of persons or officers who are authorized to accept summons for a domestic
corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule
now states "general manager" instead of only "manager"; "corporate secretary" instead of
"secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is
conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to confer jurisdiction of the court
over a corporation. The officer upon whom service is made must be one who is named in the
statute; otherwise the service is insufficient. . . The liberal construction rule cannot be invoked and
utilized as a substitute for the plain legal requirements as to the manner in which summons should
be served on a domestic corporation. .”
“Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old
rule) has been held as improper. Accordingly, we rule that the service of summons upon the branch
manager of Villarosa at its branch office at CDO, instead of upon the GM at its principal office at
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Davao City is improper. Consequently, the RTC did not acquire jurisdiction over the person of
Villarosa. The fact that Villarosa filed a belated motion to dismiss did not operate to confer
jurisdiction upon its person. There is no question that the Villarosa’s voluntary appearance in the
action is equivalent to service of summons.”
“Before, the rule was that a party may challenge the jurisdiction of the court over his person by
making a special appearance through a motion to dismiss and if in the same motion, the movant
raised other grounds or invoked affirmative relief which necessarily involves the exercise of the
jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the
court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. CA which
became the basis of the adoption of a new provision in Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the
rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by
the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court
over the person of the defendant can by no means be deemed a submission to the jurisdiction of
the court.”
“There being no proper service of summons, the trial court cannot take cognizance of a case for
lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court
will consequently be null and void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent
trial court are ANNULLED and SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign
private juridical entity which has transacted business in the Philippines, service may
be made on its resident agent designated in accordance with law for that purpose,
or, if there be no such agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines. (14a)
Q: What is the difference between corporation or entity in Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a
foreign corporation but doing business in the Philippines because the law says, when the defendant is a foreign
private juridical entity which transacted business in the Philippines…”
When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a nonresident defendant. The best example of a foreign corporation doing business in the Philippines are air line
companies, foreign banks.
Q: To whom do you serve summons in this case?
A: Well, that is already touched in Rule 11, Section 2. If it has a designated resident agent, you must serve it
to him. If it has none, then to the appropriate Philippine government officer who will transmit it to the head
office.
Q: What is the period to file answer?
A: Under Rule 11, Section 2, the period to file an answer is longer if summons is served on a
government official designated by law for that purpose, the period is 30 days. But if the foreign
corporation has a designated resident agent in the Philippines and summons is served on him, the
period to answer is only 15 days just like any other defendant.
NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS
241 SCRA 192 [1995]
HELD: When there is a designated resident agent to receive summons, service of
summons to that person is exclusive. He is the only one to be served with summons in
behalf of the corporation sued. So, if there is a designated agent, siya lang. He is the
only person authorized to receive the summons.
“If a foreign corporation has designated an agent to receive summons the designation is
exclusive. Service of summons is without force and gives to a court no jurisdiction unless made
upon him.”
BALTAZAR vs. COURT OF APPEALS
168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation at an address. But when the sheriff
went to that address, he was told by the security guard that the corporation was no longer holding
office there. Lumipat na sa ibang lugar. Therefore, we do not know already.
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff filed a motion in court to be allowed
to serve summons by publication under Section 14 when the whereabouts of the defendant is
unknown. So there was service of summons by publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known what every law school student
knows! – that defendant, being a domestic corporation must have been registered with the SEC and
that the SEC records would therefore reveal, not just the correct address of the corporate
headquarters of the defendant, but also the address of its officers.
A litigant or process server who has not gone through the records of the SEC cannot claim to
have carried out the ‘diligent inquiry’ required under the law for valid service of summons by
publication upon a domestic corporation.”
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So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan
lumipat. Also with the address of the officers like the President, you can go to his place and serve the summons
to him. So there was improper service of summons by publication. Another case was
REBULIDO vs. COURT OF APPEALS
170 SCRA 800
FACTS: A corporation committed a wrong and then pagdemanda, dissolved na. When the action
was filed, the corporation was already dissolved – wala ng juridical personality.
ISSUE #1: Can you still sue a dissolved corporation?
HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can
no longer be sued, it is very easy for a corporation to avoid liability by simply dissolving
itself after it commits a wrong.
And secondly, under the Corporation Law, even if you are already dissolved, there is still a
period for winding up where you can collect. So, it is still functioning. And to say that it is already
dissolved or that it is no longer functioning is not also true.
ISSUE #2: If that is so, to whom will you now serve the summons?
HELD: You serve it on the last set of officers. The same people mentioned – there
must be a last President or a last Corporate Secretary, etc. They are the people who
whom summons should be served.
When a corporation was placed under a Voting Trust Agreement (VTA), the summons
should be served on the trustee. The President has no more personality – that is an
exception to Section 11. So, when a corporation is placed under VTA, the summons
should be served on the person in whose favor the VTA was executed because the
officers of the corporation have no more personality to manage the affairs of the
corporation.
FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES
Finally, going back to foreign private juridical entity, take note that under the law, the foreign private
juridical entity is one doing business in the Philippines. So, if a foreign corporation is not doing business in the
Philippines, it cannot be sued, just like a non-resident defendant because the court can never acquire
jurisdiction over that person or foreign corporation. We know that ‘no?
And the perennial debate is, when is a foreign private corporation doing or not doing any business in the
Philippines? I think the Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines where there is only one manufacturer and
supplier which is a corporation in Europe. This corporation has no office in the Philippines. The Filipino
businessman contracted with the foreign corporation. He ordered machineries. The foreign corporation sent its
people to deliver the machineries. They stayed in the Philippines gor a while to check the machines and to
teach the Filipinos how to run it.
Q: Now, can that corporation be used in the Philippine courts?
A: NO, because that foreign corporation is not doing business in the Philippines. Section 12
does not refer to a foreign corporation with a single isolated, casual transaction. In the cases of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO
G.R. No. L-7154. October 23, 1954
HELD: “‘Doing business’ is construed to mean such continuity of conduct and
intention to establish a continuous business. An isolated transaction, or transactions
which are occasional, incidental or casual and which do not evince intent to conduct
continuous business do not constitute ‘doing business in the Philippines.’”
“In order that a foreign corporation may be regarded as doing business in the Philippines, there
must be continuity of conduct and intention to establish a continuous business, such as the
appointment of a local agent, and not one of a temporary character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.
November 30, 1962
HELD: “Where a single act or transaction of a foreign corporation is not merely incidental or
casual, but is of such character as distinctly to indicate a purpose on the part of the corporation to
do other business in the Philippines, and to make the Philippines a base of operations for the
conduct of a part of the corporation’s ordinary business, the corporation may be said to be ‘doing
business in the Philippines.’”
So, under the rules, a foreign corporation not doing business in the Philippines cannot be sued. If it enters
into a contract with a Filipino business man, it is not actually doing business. Isa lang eh! So, technically, that
foreign corporation cannot be sued in the Philippines. Your remedy is to go to Europe and sue that corporation
there. In the case of
LINGER AND FISCHER vs. IAC
125 SCRA 522
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FACTS: A Philippine corporation entered into a contract with a foreign corporation and then their
agreement says the foreign corporation agrees to be sued in the Philippines. So practically, puwede.
And the problem now is, to whom will you serve the summons?
When a foreign corporation not doing business in he Philippines agrees to be sued in the
Philippines, how do you serve summons? Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign private
corporation is doing business in the Philippines. So Section 12 does not apply. So, how shall we
serve the summons?
In the first place, the foreign corporation, which cannot be sued, agrees to be sued.
Their agreement is similar to venue where we can agree on the venue of the case. Now,
since it is not doing business, it is more accurate to apply the rules on Section 15 on
extraterritorial service of summons on a non-resident defendant who is not physically
here.
So, summons should be served not in accordance with Section 12 but in accordance with Section 15 on
extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations. When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor General; in case of a province,
city or municipality, or like public corporations, service may be effected on its
executive head, or on such other officer or officers as the law or the court may direct.
(10a)
An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But in
cases where it can be sued, summons may be effected on the Solicitor General being the representative of the
Republic.
Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the executive
heads such as the provincial governor, municipal or city mayor.
Summons may also be effected on “such other officer or officers as the law or the court may direct.” So the
court may order that the summons be served on the city legal officer. Here, there is still a valid service of
summons.
Sec. 18. Proof of service. The proof of service of a summons shall be made in
writing by the server and shall set forth the manner, place, and date of service; shall
specify any papers which have been served with the process and the name of the
person who received the same; and shall be sworn to when made by a person other
than a sheriff or his deputy. (20)
This is called a SHERIFF’S RETURN where the sheriff will state the manner (personal or substituted,
publication); place and date; to whom served. Then you specify that you serve also the complaint. Name of
person who received the same.
Q: Must the return be sworn to?
A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that
summons can be served by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been made by publication,
service may be proved by the affidavit of the printer, his foreman or principal clerk,
or of the editor, business or advertising manager, to which affidavit a copy of the
publication shall be attached, and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post office, postage prepaid, directed
to the defendant by registered mail to his last known address. (21)
Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action
shall be equivalent to service of summons. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant shall
not be deemed a voluntary appearance. (23a)
The first mode of acquiring jurisdiction over the person of the defendant is service of summons. However,
even when there is no service of summons, or if there is improper service of summons, if the defendant files an
answer, then in effect, he is submitting himself to the jurisdiction of the court and the court acquires jurisdiction
over his person by voluntary appearance.
Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file
an answer, or a motion for bill of particulars – that is indicative of his submission to the
jurisdiction of the court.
That is why we said, lack of jurisdiction over the person of the defendant because of absence of service of
summons or improper service of summons, can be waived by voluntary appearance. That is the second mode.
Now, of course, when a defendant files a motion to dismiss on the ground that the court has not
acquired any jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court over his person.
A special appearance is not indicative of the intention to submit to the jurisdiction of the court. Otherwise, it
becomes absurd if I will file a motion to dismiss questioning the jurisdiction of the court over my person and
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then the court will say, “Well, by filing the motion to dismiss, you are also voluntarily submitting to the
jurisdiction of the court.” Definitely, that is not the appearance contemplated by Section 20.
Now, the second sentence, “The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.” What is the
meaning of that? Well, that principle is taken from the ruling of the SC in the leading case of LADAVAL DRUG
CORPORATION vs. CA, 236 SCRA 28, which we will discuss more in detail when we reach Rule 16 on Motion to
Dismiss.
Rule 15
MOTIONS
What is a motion? Define a motion.
SECTION 1. Motion defined. A motion is an application for relief other than by a
pleading. (1a)
In a motion, the party is asking the court for a favor other than what is contained in the pleading. Usually,
the main relief is prayed for in the pleading, like “Judgment be rendered in favor of the plaintiff,” or, “Judgment
be dismissed.” That is what you pray in your complaint or in your answer.
A pleading however is directly related to the cause of action or the defense. But a motion prays for
something else. In a motion, you are asking for another relief other than the main cause of action or the main
defense. Example is a motion to postpone trial or a motion for extension of time to file answer. You do not do
that by a complaint but by way of a motion because you are praying for a relief other than by a pleading.
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Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim, counterclaim,
etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a pleading but under the
law, it is not a pleading.
However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a motion,
for a relief which normally should be prayed for in a pleading such as a motion is praying for a judgment
already. The exceptions are:
1.) Motion for Judgment to the Demurrer to Evidence (Rule 33);
2.) Motion for Judgment on the Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).
Those are the 3 exceptions to Section 1.
Q: What are the requisites of a valid motion.
A: They are found from Section 2 to Section 6:
Sec. 2. Motions must be in writing. All motions shall be in writing except those made
in open court or in the course of a hearing or trial. (2a)
As a rule, all motions must be in writing, “except those made in open court or in the course of a hearing or
trial” because for example, during the trial, pagtingin mo sa relo, quarter to twelve na. So you can move orally
for continuance. And the judge will not require you to have that typed pa. There is no more time to do that.
Anyway, it is officially recorded.
Sec. 3. Contents. A motion shall state the relief sought to be obtained and the
grounds upon which it is based, and if required by these Rules or necessary to prove
facts alleged therein, shall be accompanied by supporting affidavits and other
papers. (3a)
So a motion shall state the relief sought to be obtained and the grounds upon which it is based. For
example, you move to postpone the trial next week because you client is still abroad. So you cite the ground/s
upon which it is based.
Q: Is it necessary that a motion be accompanied supporting affidavits and other papers?
A: No, unless required by the Rules or necessary to prove facts alleged therein.
Q: Give an example of a motion where supporting affidavits are required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under Rule 37,
Section 2, in order for a motion for new trial on that ground to be valid, there must Be Affidavit Of Merits. If
there is no affidavit of merits, the motion will be denied.
And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit and
other supporting papers. Example is when you are moving for the postponement of the trial because your client
is sick, the best supporting paper would be a medical certificate for that matter.
However, if it is not required by the Rules, or the facts are already stated on record, there is no need of
supporting affidavits or documents. Example is when you move to declare the adverse party in default. There is
no need to support your motion with affidavits because anyway the court can look at the records, particularly
the sheriff’s return, to check when was the defendant was served with summons.
Sec. 4. Hearing of motion. Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for
hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof
shall be served in such a manner as to ensure its receipt by the other party at least
three (3) days before the date of hearing, unless the court for good cause sets the
hearing on shorter notice. (4a)
Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion at least
three (3) days before date of hearing. So, you do not furnish him one day before the date of the hearing. The
reason there is to prevent surprise upon the adverse party and to enable the latter to study the motion and file
his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot be filed ex-parte. Meaning,
without notice of hearing and without furnishing a copy to the opponent.
However, a motion need not be set for hearing if it is not a controversial motion . Meaning, these
are motions “which the court may act upon without prejudicing the rights of the adverse party” such as a
motion for extension of time to file answer. So with this kind of motion, the court can immediately grant your
motion.
And the law says, you serve the motion in such a manner as to ensure its receipt by the other party at least
three (3) days before the date of hearing. In other words, you have to calculate that he will receive it at least 3
days.
One good example of this requirement is one which is mentioned in Rule 13, Section 11, that personal
service is preferred to service by registered mail because if it is personal service, it is assured that the adverse
party received the motion 3 days before. But if it is service by mail, we do not know eh, unless you mail it very
much earlier because let us say, hearing on the motion will be on Friday, and then you will mail the motion on
Monday, or 5 days before, it is possible that the motion will reach the opponent on Sunday or two days later.
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That is the reason why personal service is preferred because if there is no explanation why you resorted to
by mail rather than personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than three
days?
A: The court may refuse to take action on a motion which does not comply with the rule requiring a threeday notice to the adverse party, “unless the court for good cause sets the hearing on shorter notice.” Usually
these are urgent motions such as moving for postponement because your witness got sick one day or hours
before the trial.
Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be
later than ten (10) days after the filing of the motion. (5a)
Q: Now, what happens if a motion does not contain a notice of hearing?
A: A motion that does not contain a notice of hearing is but a mere scrap of paper; it presents no question
which merits the attention and consideration of the Court. It is not even a motion for it does not comply with the
rules. A motion without notice of hearing is nothing but a piece of paper filed in court, which should be
disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651 [1991])
Q: To whom should the notice of hearing be addressed?
A: It is addressed to all parties concerned. So, normally ganito iyan:
Atty. Johnny Bravo
Counsel for plaintiff
Greetings! Please take notice that the undersigned is submitting the
foregoing motion for the reconsideration of the Honorable Court on Friday,
November 28, 1997 at 8:30 in the morning.
(Signed) Atty. Hong Hunks
Counsel for the defendant
Now, some lawyers, when they prepare a notice of hearing will state: “TO THE CLERK OF COURT, Please
set the foregoing for the consideration of the court…” Now, the law says, the notice of hearing should be
addressed to the parties and not to the clerk of court. So, the common practice of addressing the notice of
hearing to the clerk of court is technically wrong.
The SC has already commented on that several times. One of them was the case of
PRADO vs. VERIDIANO II
204 SCRA 654 [1991]
HELD: “Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice shall be
served by the applicant to all parties concerned and shall state the time and place for the hearing of
the motion. A notice of hearing addressed to the Clerk of Court and not to the parties is no notice at
all.” So it is very technical.
Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But some
lawyers are very technical. He will look for loopholes in the motion on the ground that you did not address the
notice of hearing to him but to the clerk of court. Is he correct? Tama man iyan ba! Even the SC said that do not
address it to the clerk of court. You address it to the party. The law is very clear.
Now, take note that the new rule added the phrase that you “must specify the time and the date of the
hearing which must not be later than ten (10) days after the filing of the motion.” That is not found in the prior
rule.
Before, some lawyers are mischievous. When they received the complaint, instead of filing an answer, they
will file a motion to dismiss just to delay. And the motion to dismiss is denied. But at least the period to answer
is stretch. And too make it worse, they will file it in November and they will set it for hearing in December. One
month from now.
Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, “I will set if
for hearing 2 months from now.” It is now very clear that it must not be later than 10 days after the filing of the
motion. And see to it that the party receives it 3 days before the hearing because of Section 4. The minimum is
3 days. So that is a new requirement found in 1997 Rules.
Sec. 6. Proof of service necessary. No written motion set for hearing shall be
acted upon by the court without proof of service thereof. (6a)
Proof of service of the motion is required – “No written motion et for hearing shall be acted upon by the
court without proof of service hereof.” This is related to Rule 13. As a general rule, you cannot file anything in
court without furnishing a copy to your opponent. A motion cannot be filed ex-parte.
The only exception here are motions which can be filed ex-parte because they are not
controversial. Normally, there are motions which can be filed without proof of service, which generally the
court will grant anyway. Another example is Rule 23, Section 21 on indigent or pauper litigants – a party may be
authorized to litigate his action, claim or defense as a indigent upon ex-party motion together with the
complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party.
But those are the only exceptions. So, as a rule, every motion must be served to the opposite party.
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So, we will outline Sections 2 to 6
Q: What are the requisites of a valid motion?
A: The REQUISITES OF A VALID MOTION are the following: WRSNP
1.) It must be in writing except those made in open court or in the course of hearing or
trial;
2.) It shall state the relief sought to be obtained and the ground upon which it is based;
3.) It must be accompanied by supporting affidavits and other papers, if required by these
Rules or necessary to prove facts alleged therein. However, if the facts are already
stated on record, the court can check the records;
4.) There must be a notice of the hearing attached to the motion and the adverse party
must receive the motion at least three (3) days before the date of hearing, unless the
court for good cause sets the hearing on shorter notice;
5.) There must be notice of hearing addressed to all parties concerned, and shall specify
the time and date of the hearing which must not be later than ten (10) days after the
filing of the motion; and
6.) There must be proof of service of the motion on the adverse party.
Sec. 7. Motion day. Except for motions requiring immediate action, all motions
shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day,
in the afternoon of the next working day. (7a)
Motion hearings are scheduled on Friday afternoons except those motion which require urgent action. So if
today is Friday and it’s a holiday, sa Monday pa ang hearing. But again, some judges do not follow this. Ang
iba pa nga, everyday eh.
OMNIBUS MOTION RULE
Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed waived. (8a)
The word “omnibus” means “all embracing or all encompassing.”
Q: Define omnibus motion.
A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include
all objections then available and objections not so included shall not deemed waived. (Section 8; Ins. Co. of
North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a
motion to based on one ground, if denied, second motion to dismiss based on the second ground, denied, third
motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or more grounds, you file
only one motion to dismiss invoking those grounds because the rule is, any ground not so invoked is deemed
waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits the
filing of a second motion for new trial based on grounds available to the movant when he filed his first motion.
Well, if the grounds came later, that is different.
So, the principle there is, if you have two or more grounds you should only file one motion where you invoke
all your grounds.
Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the provision
of Section 1 of Rule 9.”
Rule 9, Section 1. Defenses and objections not pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not raise
them in a motion to dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer.
(Exceptions to the omnibus motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2) Options under
the old rules. The first option is to file a motion for leave to file amended complaint. And when it is granted, that
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is the time for to you file your amended complaint. The second option is you file your amended complaint
together with the motion to admitted it.
The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to intervene.
Granted, I will file my pleading in intervention.” The same thing for certain types of motion like motion for leave
to file third-party complaint: “Motion for leave. Granted, I will file my third-party complaint.” That is under the
previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be admitted
must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading. The pleading
sought to be amended must already be included in the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so
far as concerns caption, designation, signature, and other matters of form. (9a)
The rule on pleadings also applies to written motion as far as caption, designation, signature and other
matters of court. So in appearance there is difference between the appearance of a pleading and the
appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.
Rule 16
MOTION TO DISMISS
Motion to dismiss is the counterpart of motion to quash (Rule 117) in criminal procedure. In criminal
procedure, before the arraignment or before entering a plea the accused may instead file what is known as
motion to quash. The proceedings are quashed on the ground that: (1) the court has no jurisdiction over the
subject matter of quashed on the ground that: (1) the court has no jurisdiction over the subject matter of the
case or over the person of the accused; (2) the person who field it has no authority to do so; (3) the complaint
or information charges more than one offense; (4) because of double jeopardy; or (5) the criminal liability has
already been extinguished.
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Section 1. Grounds. Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any of
the following grounds:
xxxxx
Q: When do you file a motion to dismiss?
A: Within the time for but before filing the answer. So, within 15 days instead of filing an answer the law
allows the defendant to file instead a motion to dismiss. The principle is within 15 days from receipt of the
summons and the complaint, the defendant should file an answer or in lieu of an answer he may instead file a
motion to dismiss based on the grounds enumerated in section 1.
Now, a motion to dismiss is available not only for the purpose of dismissing the complaint but also for
dismissing a counterclaim, a cross-claim, a third party complaint because the laws says “before filing the
answer to the complaint or pleading asserting a claim.” A claim can be ascertained not only in a compliant but
also in other pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING
PARTY
Q: When will that happen?
A: When there is absence of summons or improper service of summons.
Now based on decided cases, it would seem that this is one of the weakest grounds for a motion to dismiss
– “the court has not acquired jurisdiction over the person” – for there are many exceptions. There are many
waivers. Because of the rule of waiver the court many acquire jurisdiction over your person in some other
capacity.
EXAMPLE: You are improperly served with summons but you file a motion for bill of particulars
you file a motion for extension of time to file for an answer and then after that you file a motion
dismiss. Wala na iyon. The principle is that the moment you file a motion for bill of particulars
you file a motion for extension of time, in effect you have already submitted to the jurisdiction
the court. If there was any defect in the service of summons, it was already cured. Waived na ‘yon. Wala
‘yong ground mo. That’s why there are so many question here.
or
to
or
of
na
EXAMPLE: Now, suppose the summon was served on a nine-year old boy who is presumed to be
responsible. When his father arrived, the boy told his father that somebody came in and left this. So in other
words the father actually got the summons. Now, suppose the father will file a motion to dismiss on the ground
that the court never acquired jurisdiction over the person because the summons was improperly serve. Do you
think it will prosper?
There are cases in the SC which says even if the summons was not properly served, if actually it came to
the attention of the defendant, the defect is cured. Because if you say I will not answer for the summons is
improper that is more of a technicality. You are being technical. Actually natanggap mo naman kahit na
magreklamo ka pa. In other words, there are cases along that line. That is why this ground may no longer be
available to you because of those instances.
Kaya nga I still have my doubt on the corporations ba – that you must serve the complaint to the following
people only. So, if you will serve it to the branch manager, who is not among those mentioned now in the law,
because the word ‘agent’ disappears, but the branch manager transmit it to the president, can the corporation
ignore the complaint by the summons by relying on the technicality that it was served on the wrong person? To
my mind, that is still a question mark. That is relying too much on technicality. What is important is you were
properly served.
LINGER AND FISHER vs. IAC
125 SCRA 522
FACTS: The sheriff served the summons improperly on the defendant. And the defendant filed a
motion to dismiss on the ground that the court has no jurisdiction over his person.
HELD: Defendant assumed that the sheriff made a mistake. Why should we dismiss the
complaint? It is not the fault of the plaintiff. If the sheriff does not know how to do it, the fault lies on
the sheriff and the sheriff is an employee of the court, not an agent of the plaintiff. Why should the
court blame the plaintiff? If that is what happens we will not dismiss the case. We will instead issue
an alias summons and direct the sheriff to solve it properly.
With all this decided cases, it would seem that he objection of no jurisdiction over the person of the
defending party is getting weaker and weaker because of so many exceptions such as: (1) waiver; (2) voluntary
appearance; (3) improper service but the defendant came to know about it so you cannot rely on the
technicality and (4) then you have the case of Linger.
FAR CORPORATION vs. FRANCISCO
146 SCRA 197
HELD: This case reiterated the ruling in LINGER where the SC said again, if the sheriff did not
know how to serve the summons, why should the plaintiff’s complaint be dismissed when it is not
his fault. The correct procedure is for the court to issue another summons and direct that the sheriff
should serve it properly.
On the other hand, there was a conflict before in jurisprudence on this question:
Q: Suppose I will file a motion to dismiss. Assuming that there is a ground of lack of jurisdiction over my
person and venue is improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
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There are some cases where the SC said no more. When you file a motion to dismiss questioning the
jurisdiction of the court over your person and at the same time you are citing other grounds, then you are
already waiving the defect of lack of jurisdiction. Why? When you cite other grounds like prescription, you are
now submitting to the jurisdiction of the court. In effect you have waived the ground of lack of jurisdiction.
But there are also other cases where the same issue came up and the question is: Can a defendant file a
motion to dismiss based on the lack of jurisdiction over the person together with other grounds? Are you
deemed to have waived the issue of lack of jurisdiction? NO, you can not file a motion to dismiss because of the
omnibus motion rule. When you file a motion to dismiss, you have to invoke all the grounds. So, you are not
waiving that ground.
So there was confusion. What is really the correct rule? Because there are decided cases on both sides.
NOW, the controversy has been settled starting with the ruling of the SC in the 1994 case of:
LA NAVAL DRUG CORPORATION vs. COURT OF APPEALS
236 SCRA 78 [en banc]
HELD: When you file a motion to dismiss citing lack of Jurisdiction over your person
together with other grounds, there is no waiver on the defect of lack of jurisdiction. So,
you can file a motion to dismiss on that ground together with other grounds. There is no
more waiver in effect that is the recent decision. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of Court. Let’s go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the
action shall be equivalent to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE
CLAIM.
That is one of the most important grounds for a motion to dismiss.
EXAMPLE: An action for unlawful detainer is field in the RTC and your ground is, the court has no jurisdiction
over the subject matter. Or, an action for annulment of marriage is filed in the MTC. Now, I will file a motion to
dismiss because the court has no jurisdiction over the subject matter.
So, we are familiar already with this. Now, let’ go to important principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is determined by the allegation in the
compliant .
Q: How do we determine whether a court has a jurisdiction or not over a particular case?
A: By reading the compliant, we will know whether the subject matter is within the jurisdiction of the court
or not. So the principle to remember is, jurisdiction over the subject matter of the case is determined by the
allegations in the complaint. They are determined in the allegations of the complaint itself, not by the allegation
of the defendant in his motion to dismiss.
EXAMPLE: A filed a complaint against B before the RTC of Davao City to recover an unpaid loan of P250,000.
By going over the complaint, does the RTC have jurisdiction? YES ( P250,000). Now, here comes the defendant
filing a motion to dismiss under Rule 16 alleging that “it is not P250,000 but only P50,000. Therefore, the court
has no jurisdiction over the subject matter.” So the court is confronted with this situation.
Q: What will the court do? Should the court deny the motion to dismiss?
A: YES because jurisdiction over the subject matter is determined by the allegations in the complaint. They
are not determined by the allegations of the defendant in his motion to dismiss.
SECOND PRINCIPLE: When a defendant files a motion to dismiss on the ground that the court
has no jurisdiction over the subject matter, the defendant hypothetically admits all the allegations
in the complaint to be true. The defendant in the meantime, is not allowed to present evidence that the
court has no jurisdiction. Everything must be decided on the face of the complaint only.
So, this is the corollary principle – when a defendant files a motion to dismiss on this ground, he
hypothetically admits all the allegations in the complaint. Hypothetical ba! – Assuming, for the sake of
argument, that everything in your complaint is true, does the court have the jurisdiction?
EXAMPLE: Vannie Kolotski will file a case against you for P300,000 in the RTC on the ground that you owe
her P300,000. But the defendant will file a motion to dismiss, “The RTC has no jurisdiction because the loan is
not P300,000 but only P50,000. The defendant will present evidence that it is not P300,000 but P150,000. Can
you do that? NO, you cannot do that because you have to hypothetically admit eh! If you will file a motion to
dismiss on that ground, it will be denied.
But suppose it is really P50,000 only and in the course of the trial, even plaintiff’s own evidence shows that
the loan is only P50,000. If that is so, if that becomes apparent in the middle of the trial, Vannie Kolotski will
now move to dismiss on the ground that the lack of jurisdiction has now become apparent. Anyway, you have
not waived that defect. You can raise that anytime. But at the start of the case, whatever the complaint says,
that is assumed to be true for the moment, if the ground is lack of jurisdiction. So, what is the principle there?
Jurisdiction over the subject matter is determined purely by the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once acquired by the court upon the
filing of the complaint, the court retains the jurisdiction over that case until that case is
terminated. Any subsequent development or any subsequent amendment of the law will no longer
deprive the court of its jurisdiction.
A perfect EXAMPLE is what happened with the effectivity of the law expanding the jurisdiction of the MTC
under RA 7691. The jurisdiction of the MTC under the old law is P20,000 lang eh. So, if your claim is above
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P20,000, RTC na. And there were several cases pending in court already being tried – P 30,000, P 40,000 in the
RTC. Then in April 1994, the jurisdiction of the MTC was increased to P100,000. What happens now to all those
cases which were only P21,000 or P20,000? Shall the RTC dismiss all of them or the RTC will finish it? Jurisdiction
over the subject matter once acquired continues until the case is finished or terminated. That is the principle to
remember.
The ONLY POSSIBLE EXCEPTION there is what the Supreme Court says, if the new statute is
intended to be curative in character – to cure the defect under the old law – then the rule on
adherence of jurisdiction does not apply.
That was best exemplified by a situation years ago when there was a controversy as to whether a claim for
moral and exemplary damages filed by an employee against the employer for oppressive act of terminating him
can be granted by the Labor Arbiter.
Definitely, reinstatement and backwages can be granted by the Labor Arbiter. The jurisprudence at that
time when it was still unsettled was, the claim for moral should be settled in the RTC, not by the Labor Arbiter.
However, where these cases were still pending in the RTC, mga damages, in the meantime the law naman was
changed. The Labor Arbiter now was given jurisdiction to award damages.
So. what happen to the cases for damages now pending in the RTC? Should they be transferred to the Labor
Arbiter? It we follow the rule that jurisdiction once acquired continuous, the answer is, the RTC should continue
trying the case for damages and the Labor Arbiter continue to try the backwages and reinstatement. But that is
practically splitting the case into two parts.
So obviously, the intention of the law granting the Labor Arbiter the jurisdiction is to cure the error. So, what
happened? All those cases filed in the RTC were ordered transferred to the Labor Arbiter as an exception to the
rule on adherence to jurisdiction.
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter may be raised: 1) In the
answer; 2) In the course of the trial; 3) After the trial; 4) After the judgment; or even 5) For the
first time on appeal.
All right, let’s go to the basics:
Q: Can the issue of lack of jurisdiction over the subject matter be raised in the middle of the trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by the trial court, can you still raise the issue of lack of jurisdiction?
Why?
A: YES. The decision is deemed void because the court pala all along have no authority to try. So the trial is
void. The judgment is void. As a matter of fact it can be raised at any stage of the proceeding even for the first
time on appeal. That is the rule.
Now, that rule has somehow weakened or diluted by the ruling in
TIJAM vs. SIBONGHANOY
23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really cohere and unique. From the start, the City
Court of Cebu has no jurisdiction. The defendant never filed a motion to dismiss. And what is so
surprising is that the court never noticed it.. So the parties will go on trial. After trial, the court
rendered judgment in favor of the plaintiff. The defendant was not satisfied. He appealed to the
former CFI (now RTC) and on appeal that issue on lack of jurisdiction was never raised. Talo na
naman iyong defendant.
So all this process took about 10 years. Talo. So much water has already passed under the
bridge. Nagpalit ng abogado iyong defendant and he traced the proceeding. Actually all along, the
inferior court has no jurisdiction and everything is void from the very beginning. But take note, it
took the defendant through his lawyer 10 years or more to raise the issue. Now, of course, if we
will follow the rule, it can be raised at any stage at any time even for the first time on appeal on this
ground that everything is void.
HELD: NO, you cannot raise it anymore. Under the equitable doctrine of estoppel by
laches, you are already under estoppel to raise that ground because the if you will follow the
general rule and we will declare null and void everything from the City Court to the CA, everything –
a judicial work which lasted for 10 years – will all be thrown in the waste basket. That is practically
compelling the plaintiff to undergo a second calvary. Ulit na naman siya just to prove his case.
But the ruling in SIBONGHANOY is not intended to be the rule. It is not intended to overrule the rule that
lack of jurisdiction over the subject matter can be raised at any stage of the proceeding. The ruling in the
SIBONGHANOY is only to be applied in exceptional situations
Even the SC noted that courts were applying the SIBONGHANOY ruling indiscriminately that it will take you
one or two months to raise lack of jurisdiction – wala pa nag-unpisa ang trial then one or two months after the
case was filed, ah estoppel na! Practically, that is saying that lack of jurisdiction cannot be raised anymore. But
the SC said NO, that is wrong. In the case of
SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC
206 SCRA 283 [1992]
HELD: “A rule, that had been settled by unquestioned acceptance and upheld in decisions so
numerous to cite is that the jurisdiction of a court over the subject matter of the action is a matter
of law and may not be conferred by consent or agreement of the parties. The lack of jurisdiction of a
court may be raised at any stage of the proceedings, even on appeal.”
“This doctrine has been qualified by recent pronouncements which stemmed principally from
the ruling in the cited case of SIBONGHANOY. It is to be regretted, however, that the holding in said
case had been applied to situations which were obviously not contemplated therein. The
exceptional circumstances involved in SIBONGHANOY which justified the departure from the
accepted concept of non-waivability of objection to jurisdiction has been ignored and, instead a
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blanket doctrine had been repeatedly upheld that rendered the supposed ruling in SIBONGHANOY
not as the exception, but rather the general rule, virtually overthrowing altogether the time-honored
principle that the issue of jurisdiction is not lost by waiver or by estoppel.” (Calimlim vs. Ramirez,
G.R. No. L-34362, 118 SCRA 399 [1982]).
So, this has already been clarified. The latest case was the 1995 case of
DE LEON vs. COURT OF APPEALS
245 SCRA 166
HELD: “In the past, the principle of estoppel has been used by the courts to avoid a clear case
of injustice. Its use as a defense to a jurisdictional error is more of an exception rather than the rule.
The circumstances outlining estoppel must be unequivocal and intentional, for it is an exception to
standard legal norms and is generally applied only in highly exceptional and justifiable cases.”
In other words, do not abuse the SIBONGHANOY ruling. That is very exceptional case.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID
Here, there is no compliance with Rule 4 – the action is filed in the place other than the proper venue under
Rule 4.
Q: Suppose you file a motion to dismiss on the ground of improper venue, but your motion to dismiss is
denied. What is your remedy?
A: Your remedy is to resort to the special civil action of prohibition under Rule 65. And you should resort to it
immediately because if you will file your answer and go to trial, in effect, you will be waiving the objection. The
objection must be pursued diligently. That was the pronouncement in the case of Pangasinan Transportation Co.
v. Yatco (21 SCRA 658).
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE;
Q: Give an example when the plaintiff has no legal capacity to sue.
A: A minor will file a case without being assisted by his parents or guardian. Or, a person will file a case in
behalf of a minor claiming that he is a guardian when in fact he is not. He is not the parent of the child. He is
not also appointed by the court.
According to the SC, when you say that the plaintiff lacks legal capacity to sue, there are two
(2) possible meanings. It means any of the following:
1.) when the plaintiff does not possess the necessary qualifications to appear at the trial such
as when the plaintiff is not in the full exercise of his civil right like when he is a minor, or
insane; and
2.) when the plaintiff does not have the character or representation which he claims like he
claims to be a guardian when in reality he is not. (Lunsod vs. Ortega, 46 Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor – guardian ad litem. But actually, you will
challenge my being a guardian. There is no court order according to you. So, I might be of age but I
have no legal capacity to sue because I do not have the representation which I claim I have.
Q: (Bar question) Distinguish lack of legal capacity to sue from lack of legal personality to sue.
A: The former refers to disability of the plaintiff while the latter to the fact that the plaintiff is
not a real party in interest, in which case, the ground for dismissal would be that the complaint
states no cause of action (Gonzales vs. Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil. 880)
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of the plaintiff, like he is a
minor; or he is insane or incapacitated.
In lack of legal personality to sue – going back to Rule 3, when you are appointed as agent
or attorney-in-fact of somebody to manage his property an to file suit in his behalf – while you
have the authority to file cases, it does not mean to say that you should sue in you own name
because the real party in interest is the principal, not the agent.
So if the agent files an action in his own name, rather than that of the principal, what you are going to say
is, you are not the real party in interest. You are not challenging his age or disability but you are challenging his
being placed as plaintiff when actually he is only the attorney-in-fact or agent. In effect, when you raise this
ground, actually that would fall more under paragraph [g] – that the pleading asserting the claim states no
cause of action because there is no cause of action in favor of the agent. The cause of action is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR
THE SAME CAUSE;
Now, this is one of the most important grounds for a motion to dismiss. This is popularly known as the
ground of lis pendens. Now, do not confuse this with the notice of lis pendens that we discussed in Rule 13.
That is the notice that you annotate on the title of the property when you are filing a case for its recovery.
Although the meaning is the same because lis pendens is Latin for pending litigation.
So the essence is that there is a case filed against you and then while it is pending, another case is filed
against you based on the same cause of action. So what will you do? I have to move to dismiss one case. I will
allege that there is already another action pending between the same parties for the same cause. So in effect,
what you are saying is the plaintiff is guilty of splitting his cause of action and this ground has also been
mentioned in Rule 2, Section 4:
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Rule 2, Sec. 4. Splitting a single cause of action; effect of. - If two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others.
(4a)
So the filing of one case is available as a ground for the dismissal of the other. Now, such ground is stated
under Rule 16 – that there is another action pending between the same parties for the same cause. The other
legal term for it aside from the ground of lis pendens is the ground of litis pendencia. Pareho din iyan. It means
the same thing. That’s why when you read some SC cases, the SC cites either one of the two terms. There is
another foreign term although it is less used, the ground of action pendant.
LITIS PENDENTIA viz a viz FORUM-SHOPPING
(taken from the 4th year Remedial Law Review transcription, 1997-98)
Now, you come analyze that when the other party files two cases against you, sabay-sabay – what is the
correct ground for dismissal? Litis pendentia or forum-shopping? Is there a relationship between forum-shopping
and litis pendentia? When I file two identical cases in two courts, am I not also forum-shopping?
Yaan! Iyan ang magandang tanong! Iyan ang malalalim na tanong sa procedure.
One of the most intelligent discussion on this topic was the case of FIRST PHILIPPINE INTERNATIONAL BANK
vs. CA (252 SCRA 259), January 24, 1996, penned for the Third Division by Justice Artemio Panganiban.
Do you know what he said? Itong forum-shopping, how it started? Actually, it is a concept in Private
International Law where you shop for a forum – where you look for a country where you will file a case and then
the court of that country will now reject it on the ground for forus non convenlens. That is where it originates
eh. You are shopping for a forum.
FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS
252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: “Forum-shopping originated as a concept in private international law, where non-resident
litigants are given the option to choose the forum or place wherein to bring their suit for various
reasons or excuses, including to secure procedural advantages, to annoy and harass the defendant,
to avoid overcrowded dockets, or to select a more friendly venue. To combat these less than
honorable excuses, the principle of forum non conveniens was developed whereby a court, in
conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most
‘convenient’ or available forum and the parties are not precluded from seeking remedies
elsewhere.”
“In the Philippines, forum shopping has acquired a connotation encompassing not only a choice
of venues, as it was originally understood in conflicts of laws, but also to a choice of remedies.”
“As to the first (CHOICE OF VENUES), the Rules of Court, for example, allow a plaintiff to
commence personal actions "where the defendant or any of the defendants resides or may be
found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff" (Rule 4,
Sec. 2 [b]).”
That is forum-shopping. lba ang rule ng venue. Where will you file personal action? – where the plaintiff or
any of the principal plaintiff resides, or, where the defendant or any of the defendants resides. So, mamili ka! If I
am the lawyer kung saan pabor, doon ako mag-file, and that is forum-shopping. But that is legitimate
forum-shopping because that is allowed by law.
“As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities
independently of the criminal, arising from the same set of facts. A passenger of a public utility
vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa
criminal — each remedy being available independently of the others — although he cannot recover
more than once.” (First Philippine International Bank vs. CA, supra.)
That is in effect forum-shopping. If I am the offended party, shall I prosecute the civil aspect in the criminal
action or shall I file an independent civil action or reserve the right? Nasa iyo man iyan ba! In effect, you shop
for a forum. That is also forum-shopping. But that is legitimate forum-shopping.
“In either of these situations (choice of venue or choice of remedy), the litigant actually shops
for a forum of his action. This was the original concept of the term forum shopping” which is
perfectly a valid act.
“Eventually, however, instead of actually making a choice of the forum of their actions, litigants,
through the encouragement of their lawyers, file their actions in all available courts, or invoke all
relevant remedies simultaneously. This practice had not only resulted in conflicting, adjudications
among different courts and consequent confusion inimical to an orderly administration of justice. It
had created extreme inconvenience to some of the parties to the action.”
“Thus, ‘forum shopping’ had acquired a different concept – which is unethical professional legal
practice. And this necessitated or had given rise to the formulation of rules and canons discouraging
or altogether prohibiting the practice.”
“What therefore originally started both in conflicts of laws and in our domestic law as a
legitimate device for solving problems has been abused and mis-used to assure scheming litigants
of dubious reliefs.”
“Consequently, where a litigant or one representing the same interest or person sues the same
party against whom another action or actions for the alleged violation of the same right and the
enforcement of the same relief is/are still pending, the defense of litis pendencia in one case is a
bar to the others; and, a final judgment in one would constitute res judicata and thus would cause
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the dismissal of the rest. In either case, forum shopping could be cited by the other party as a
ground to ask for summary dismissal of the two or more complaints or petitions, and for the
imposition of the other sanctions, which are direct contempt of court, criminal prosecution, and
disciplinary action against the erring lawyer.” (First Philippine International Bank vs. CA, supra.)
So, what is the difference between forum shopping and litis pendentia? Actually, there is no difference. Mas
maganda pa nga i-dalawa mo – litis pendentia and forum shopping. Ano ang effect? Sabihin mo, litis
pendentia – one will be dismissed, the other will remain alive. In forum shopping naman, parehong
patay iyan. The court will dismiss both. I-disciplinary action pa ang abogado. There is no contempt
of court in litis pendentia.
That is now the relationship of forum shopping and litis pendentia.
Another case, also penned by Justice Panganiban in the same year, 1996, where he also made a statement
that forum shopping and litis pendentia are almost identical is the case of
EMPLOYEES COMPENSATION COMMISSION vs. COURT OF APPEALS
257 SCRA 717, June 28, 1996.
HELD: Forum-shopping exists where the elements of litis pendencia. The test
therefore in determining the presence of forum-shopping is whether in the two (or more
case) pending, there is identity of (a) parties, (b) rights or causes of action and (c)
reliefs sought. Forum-shopping does not require a literal identity of parties. It is
sufficient that there is identity of interests represented.
When there is already adjudication on the merits in one case to be more accurate, RES ADJUDICATA should
be alleged, and not forum shopping as a defense because the decision in the previous case had already become
final and executory. So, when there is already a judgment in the previous case to be exact that should be res
judicata. But when there is no decision yet, that is litis pendentia and forum shopping.
ELEMENTS OF LITIS PENDENTIA
Now, this is one of the grounds of a motion to dismiss which is the subject matter already of so many cases
and so many questions in the bar. One of the fundamental questions which is asked here is: What are the
requisites for litis pendencia as a ground for a motion to dismiss. Actually, there is no wrong if will file as many
cases as I want against you provided the causes of action are different. Sometimes, it is difficult to determine
where there is litis pendencia or none. It is possible for 2 cases to arise between the same parties or the 2 cases
are interrelated. But actually they arose from different causes of action. So you will get confused.
Sometimes when you read cases decided by the SC on litis pendencia, you will have a hard time
determining whether the 2 cases are only related or they are really identical. IIf they are only related, there is
no basis for dismissal.
Q: What are the requisites of litis pendentia as a ground for a motion to dismiss?
A: There are four (4) requisites:
1.) Identity of parties between the two actions, or at least such as represent the same
interest;
In the 2 actions, the parties are the same – the same plaintiff, same defendant. Literally, they
may not be the same but the persons who are filing the second persons are actually doing it on
you behalf. So they also represent the same interest.
2.) Identity of rights asserted and relief prayed for;
The rights asserted are the same. The relief prayed for in both actions are the same.
3.) The relief must be founded on the same facts;
So same basis; same evidence.
4.) The identity in these particulars should be such that any judgment which may be
rendered on the other action will, regardless of which parity is successful, amount to res
adjudicata in the action under consideration. (Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva,
57 O.G. 1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia, L-21793, Oct. 20, 1966) In other
words, the principle of res adjudicata will apply.
CASE: The husband filed an action for legal separation on the ground of adultery of his wife. In the same
action, the wife demanded, in a counterclaim, maintenance and support for her and here children.
Subsequently, the wife filed an independent action for support against her husband. Will the second action
prosper?
A: NO, the issue of support having been raised in the first action as a counterclaim, it cannot be made an
issue in a subsequent independent action. Hence, the independent action for support should be dismissed on
the ground of lis pendens, all the other requisites being present. (Olayvar vs. Olayvar, supra) Klaro iyan. Nagcounterclaim ka ng support dito (first action). File ka na naman ng action for support. So, there are now 2
actions for support. Di pwede yan.
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Litis Pendentia; Fourth Element: THE IDENTITY IN THESE PARTICULARS SHOULD BE SUCH THAT ANY
JUDGMENT WHICH MAY BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF WHICH PARITY IS
SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN THE ACTION UNDER CONSIDERATION.
Now, out of these requisites the last one is the most important – the identity of parties, rights, relief and
facts should be such that any judgment which the court will render in the other action will automatically be res
adjudicata in the present action. Any judgment which the court will render in the first case regardless of who
wins will amount to res adjudicata in the second action. That is a very important requisite. Let us see how that
was applied by the SC.
TAMBUNTING vs. ONG
L-2284, August 11, 1950
FACTS: It involves a case between a mortgagor and a mortgagee. Mortgagor filed a case
against the mortgagee. The nature of the action is annulment of mortgage contract – annulment of
real estate mortgage. While their action was pending, the mortgagee filed another action against
the mortgagor and the action is foreclosure of the same mortgage. So dalawa na.
Now, the mortgagor, the plaintiff in the first case filed a motion to dismiss the second case on
the ground of litis pendentia on his argument that suppose I win in this case of annulment of
mortgage and the mortgage contract is annulled, what are you foreclosing? There is nothing to
foreclose. So the second action for foreclosure will have as basis if the mortgage contract is
annulled in the first case. So there being litis pendencia, the second case should be dismissed.
HELD: It is true that the second case will have no more leg to stand on if the
mortgagor will win the first case, that is if you win. Eh paano kung talo ka? Suppose the
first case of annulment of mortgage contract is dismissed? So the mortgage contract is
valid, with more reason the mortgagee has the right to foreclose.
Therefore, the fourth requisite is missing because the fourth requisite is regardless
of who wins in the first case, it will bar the second case. But here, the second case
would be barred if the mortgagor wins but if the mortgagee wins, the second case will
not be barred. So the fourth element is not present. There is no litis pendencia in this
case.
FRANCISCO vs. VDA. DE BLAS
93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece of land – accion publiciana.
According to Jayhan, she is the owner of the land occupied by Jessa, so Jessa should surrender the
land to him. Of course, Jessa will deny that.
While the action was pending, Jessa naman filed another case against Jayhan for quieting of
title (that your title be in effect confirmed as valid so that you will not be molested anymore by the
plaintiff). So in effect, Jessa is asking the court to declare him as the real owner and is therefore
entitled to possess the property.
ISSUE: Is there litis pendencia? Can both cases prosper?
HELD: Alright, let’s analyze. Suppose Jayhan wins the case for recovery, the court in effect is
saying that Jayhan is the real owner, that practically render moot and academic because practically
if Jayhan wins the first case, the action of Jessa for quieting of title will fail because the owner pala is
Jayhan. In other words, if Jayhan wins the first case, it will bar the second.
Now, suppose Jessa will in the first case, the court in effect is saying that Jayhan is not entitled
to possess, she is not the owner, Jessa is the owner. In effect, the title of Jessa is automatically
granted, rendering unnecessary the second case. So, that is a perfect example of litis pendentia –
“whoever wins in the first case will bar the second. This is an illustration of the fourth requisite.”
So in this case, there is litis pendentia.
TEODORO vs. MIRASOL
99 Phil. 150
FACTS: There was a lease contract between the lessor and the lessee and they were already
quarreling. According to the lessor, “Mr. Lessee, I would like to remind you that our contract is only
good up to April. So 3 months from now, expired na. you better look for a place to transfer because
I’m not going to renew the lease contract.”
Sabi ng lessee, “No, no, no. That contract will be valid until next year pa!” The lessor asserted
tha the contract is only good up to April. Nag-aaway na talaga sila. They already have a quarrel as
to whether that contract is only good up to April or until next year.
Now, what happens, inunahan ni lessee ang lessor. He filed immediately an action for
declaratory relief under Rule 63 on the issue on whether the contract will expire by April or next
year pa. The case dragged on and dumating na ang April and of course the contention of the lessor
is that the contract has expired. So file na si lessor ng unlawful detainer on the ground that the
lease contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed
a motion to dismiss on the ground of litis pendencia. The lessee complained, “Why will you dismiss
my case eh mas nauna ako sa yo?! If there is an action which should be dismissed, it must be
yours. Nauna akong nag-file. Dapat sa iyo ang i-dismiss, last ka man nag-file.”
ISSUE: When there is litis pendentia, which action should be dismissed?
HELD: The dismissal of the first action would be proper. Why? What is the ground for dismissal?
– that there is another action pending between the same parties for the same cause. The law does
not say that there is another prior action pending. Wala mang word na “prior” ba, basta “another
165
action.” So, in litis pendencia, either one can be dismissed. It does not necessarily follow
that the first one will be dismissed or the second one. Either one will be dismissed.
Now, the most exhaustive discussion on this issue on which case should be dismissed when there is litis
pendentia was the 1993 case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI
217 SCRA 517
HELD: As a general rule, it should be the second case that should be dismissed by
applying the principle of priority in time and the Latin maxim of qui prior estempore ochor
estiore (he who is before in time is the better law). Priority in time gives preference in law. And that
is common sense. Just like in Labor Law – last in, first out – kung huli kang dumating, you are the
last to be employed. Kung termination, unahin ka rin, last ka eh. So that’s the general rule.
But the general rule is not true all the time just like what happened in the case of TEODORO VS. MIRASOL
where the first case was ordered dismissed. Also in the case of RAMOS VS. PERALTA (98 Phil)
Q: What was the principle used in the case of TEODORO and RAMOS in sustaining the dismissal of the first
case instead of the second?
A: The criterion which was applied by the SC was: What is the more appropriate action to remain. So
hind iyung nauna but that which is more appropriate. In the case of TEODORO, since we are talking
about ejectment here, the unlawful detainer case is the more appropriate action to remain rather
than the first (declaratory relief). So it is not a question of sino ang nauna but which action should
stay for the good of the parties. The same thing happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
HELD: In this case there was also a conflict on which case should be dismissed and which case
should remain. The trial court ordered the dismissal of the first case by applying another
criterion – the criterion of interest of justice. In applying this standard, the court should ask
which case is in a better position to serve the interest of justice or which case should remain to
serve the interest of justice taking into account the nature of the controversy, the comparative
accessibility of the court to the parties and other similar factors.
So, the general rule is: dismiss the second case, let the first case remain based on the rule on priority in
time. But sometimes, sabi ng SC, it is better that the first case is dismissed by using the standard of
(1) more appropriate action or (2) interest of justice.
And the SC said, it will boil down to this – was the first action filed in good faith or bad faith? Now, sabi ng
SC in the case of TEODORO, it was obvious that the first action was filed by the lessee in bad faith because the
lessee knows that by April, pa-file-an na siya ng kaso ng lessor to eject. Of course, meron man siyang depensa.
His defense will be the contract will expire next year pa but siguro he believes in the principle of priority in time,
the best defense is an offense. So, inunahan ko siya. So, may defense in the unlawful detainer case was
converted into a cause of action. Instead of using his argument as a defense in his answer to the unlawful
detainer, he converted it into a cause of action. So, We will dismiss you. That was what happened in TEODORO.
So, more or less, that is the explanation given by the SC in VICTRONICS case.
Now, in a case the SC again touched on this criteria about litis pendentia. Practically, it is a reiteration of
VICTRONICS COMPUTERS case. I am referring to the case of
ALLIED BANKING CORP. vs. CA
259 SCRA 371, July 26, 1996
HELD: Justice Mendoza summarized the principle in this manner: Given, therefore, the pendency
of two actions, the following are the relevant considerations in determining which action should be
dismissed:
(1) the date of filing, with preference generally given to the first action filed to be
retained – that is the priority in time rule;
(2) whether the action sought to be dismissed was filed merely to preempt the later
action or to anticipate its filing and lay the basis for its dismissal – iyan ang
tinatawag na the best defense is offense – that is the TEODORO vs. MIRASOL case
– the action is filed merely as an anticipating action; and
(3) whether the action is the appropriate vehicle for litigating the issues between
the parties.
So that is practically again the summary of VICTRONICS COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA
18 SCRA 407
NOTE: This problem was already asked in the Bar.
FACTS: Cholo is a resident of Manila; Lew is a resident of Davao. There was contract between
them. Cholo filed a case against Lew on lets say, January 5 in Manila where he resides, based on
that contract. The venue is proper because the plaintiff is a resident of Manila.
Now, let’s say on January 10, Lew not knowing about the Manila case filed an identical action
against Cholo in Davao City. So hindi alam ni Lew na mayroon na palang kaso. So dalawa na. And
then on January 15, Lew received summons in Manila case. By January 20, Cholo filed a motion to
dismiss the Davao case on the ground of litis pendentia.
According to Lew, there is no litis pendentia because when I filed may case against Cholo, there
is no pending action to talk about because hindi ko alam. I received the summons very much later.
ISSUE: Was there litis pendentia? Is Lew correct?
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HELD: There was litis pendentia. Lew is wrong. Why? When does an action, become pending?
An actions becomes pending upon the filing of a case in court and the payment of docket
fee. The actions does not become pending only from the time you receive the summons.
It is pending form the moment it was filed. Therefore when it was filed on January 5, t is
already pending although you did not know about it. That is the reasoning in this case.
ANDRESONS GROUP vs. COURT OF APPEALS
G.R. No. 114928; January 21, 1997
FACTS: Willy Denate entered into an agency agreement with AG as its commission agent for the
sale of wines and liquors in Davao City, Davao provinces and North Cotabato. On November 18,
1991, Denate filed a civil action for collection of sum of money against AG before the RTC Davao.
Denate alleged that he was entitled to the amount of P882,107.95, representing commissions
from AG but that AG had maliciously failed and refused to pay the same. On December 19, 1991,
AG likewise filed a complaint for collection of sum of money with damages against Denate with the
RTC Kalookan City. AG alleged that Denate still owed it the sum of P1,618,467.98 after deducting
commissions and remittances. Denate filed a Motion to dismiss the case with the Kalookan RTC on
the ground that there was another action pending between the same parties for the same cause of
action, citing the case earlier filed with the RTC of Davao City.
AG filed its opposition to the Motion to Dismiss on the ground that the RTC of Davao had not
acquired jurisdiction over it.
RTC of Kalookan City ruled that: “the Davao case involves the same parties, and involves
substantial identity in the case of action and reliefs sought, as in the instant case however,
jurisdiction over the parties has already been acquired by the RTC Kaloocan, as Denate received the
summons as early as Jan 8, 1992, and AG. On the other hand, the summons in the Davao case has
not yet been served as of Apr 21, 1992, the date of the hearing of the instant motion, so much so
that the said Davao Court has not yet acquired jurisdiction over the parties.” The CA reversed.
ISSUE: Should the action in the Kalookan RTC be dismissed on the ground of lis pendens?
HELD: YES. “Lis pendens as a ground for the dismissal of a civil action refers to that situation
wherein another action is pending between the same parties for the same cause of action. To
constitute the defense of lis pendens, it must appear that not only are the parties in the two actions
the same but there is substantial identity in the cause of action and relief sought.”
“Further, it is required that the identity be such that any judgment which may be rendered in
the other would, regardless of which party is successful, amount to res judicata on the case on
hand. All these requisites are present in the instant case: 1.)The parties in the Davao and Caloocan
cases are the same; 2.) They are suing each other for sums of money which arose from their
contract of agency; 3.) The relief prayed for is based on the same facts and there is identity of
rights asserted; 4.) Any judgment rendered in one case would amount to res judicata in the other.”
“In conceptualizing lis pendens, we have said that like res judicata as a doctrine, litis pendentia
is a sanction of public policy against multiplicity of suits. The principle upon which a plea of another
action pending is sustained is that the latter action is deemed unnecessary and vexatious.”
“AG asserts that the Davao Court had not yet acquired jurisdiction over the parties as the
summons had not been served as of April 21, 1992 and it claims that pendency of a case, as
contemplated by the law on lis pendens, presupposes a valid service of summons.”
“This argument is untenable. A civil action is commenced by filing a complaint with the court.
The phraseology adopted in the Rules of Court merely states that another action pending between
the same parties for the same cause is a ground for motion to dismiss. As worded, the rule does
not contemplate that there be a prior pending action, since it is enough that there is a pending
action. Neither is it required that the party be served with summons before lis pendens should
apply. The rule of lis pendens refers to another action. An action starts only upon the filing of a
complaint in court.”
“It must be emphasized that the rule on litis pendentia does not require that the later case
should yield to the earlier. The criterion used in determining which case should be abated is which
is the more appropriate action or which court would be in a better position to serve the interests of
justice. Applying these criteria, and considering that both cases involve a sum of money collected in
and around Davao, the Davao Court would be in a better position to hear and try the case, as the
witnesses and evidence would be coming from said area.”
“WHEREFORE, the decision of the CA is hereby AFFIRMED.”
Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE
STATUTE OF LIMITATIONS;
Actually there are two grounds here:
1.) Barred by prior judgment (RES ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also related to splitting of cause of action. The only
difference is: there is already a judgment in the first action which has become final and executory. That is why,
you have to go back to Rule 2, Section 4 – what is the effect of splitting a cause of action? The pendency of one
case or judgment in one case is a ground f or the dismissal of the other.
So, if there is a case on appeal, the proper ground for dismissal would be litis pendentia rather
than res adjudicata because the case is still pending before the CA – the judgment is not yet final.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of time.
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The grounds on motion to dismiss are waivable based on Rule 9, Section 1 – defenses and objections not
pleaded whether in a motion to dismiss or in the answer are deemed waived. HOWEVER when it appears from
the pleadings or the evidence on record:
1.) that the court has no jurisdiction over the subject matter (Rule 16, Section 1 [b]);
2.) that there is another action pending between the same parties for the same cause (Rule 16, Section 1
[e]); or
3.) that the action is barred by a prior judgment (Rule 16, Section 1 [f]); or
4.) that the action is barred statute of limitations (Rule 16, Section 1 [f]),
the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM
STATES NO CAUSE OF ACTION;
That is also an important one – the pleading asserting the claim does not state a cause of action. In most
cases, it is the defendant who files a motion to dismiss citing this ground.
Remember that under Rule 2, Section 1, every civil action must be based on a cause of action. Therefore,
the four (4) elements of cause of action must be alleged. If one element is missing, there is no cause of action
and it is now a ground for dismissal. So, that is a condition. Kung walang cause of action, patay!
I think the language of the previous rule is: The complaint states no cause of action. That is the ‘64 Rules.
Ito namang 1997 Rules: The pleading asserting the claim states no cause of action. This is broader because the
pleading which does not state a cause of action could be a complaint, counter -claim, cross-clam or third-party
complaint. So, it is broader.
Q: How will you know that the pleading (e.g. complaint) states or does not state a cause of action?
A: The principle to remember is: Whether the pleading states a cause of action or not is determined only by
allegations in the pleading. The rule is similar to on the ground of lack of jurisdiction under paragraph [b].
The defendant is not allowed to say that the plaintiff has no cause of action because what he is
saying in his complaint is not true and this is what is true. No, that will not lie. You have to
hypothetically admit again.
What is the rule? When a defendant files a motion to dismiss under this ground, he
hypothetically admits the truth of all the allegation raised in the complaint. And he is posing this
question: “Assuming for the sake of argument that everything contained in your complaint or
pleading is really correct, are you entitled to the relief prayed for?”
If the answer is YES, then it states a cause of action. If the answer is NO, even if lahat niyan eh totoo, you
still can’t win, then there is something wrong in the complaint. It still states no cause of action. Therefore, when
the defendant disputes the truth of the allegations of the complaint, the correct move is to file an answer and
not a motion to dismiss. He cannot dispute the allegation in the pleading because he hypothetically admits
them.
That is why the SC said in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA
180 SCRA 576 [1989]
HELD: The lack of cause of action is not a ground for the dismissal of an action under
Rule 16. The ground is the failure of the complaint to state a cause of action which is
obviously not the same as the plaintiff not having a cause of action. The lack of cause of
action becomes evident during the course of the trial but whether the complaint states a
cause of action is only limited to what the complaint says.
So, my complaint may state a cause of action when in reality it does not. At that moment, you cannot
dismiss it.
Now, of course the rule that a defendant who files a motion to dismiss hypothetically admits all the
allegations in the complaint, as explained by the SC, refer only to material allegations of ultimate facts. If those
are evidentiary facts or conclusions of fact or law, they are not admitted, for in the first place, they have no
place in the pleading.
Di ba? You are not supposed to allege conclusion there or arguments. So these are not admitted even if I
filed a motion because what are admitted are those material allegation of the ultimate facts. That is the ruling
in the 1990 case of
RAVA DEV'T CORP. vs. COURT OF APPEALS
211 SCRA 144 [1992]
HELD: “The hypothetical admission is however limited to the relevant and material
facts well pleaded in the complaint and inferences fairly deductible therefrom. The
admission does not extend to conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to judicial notice.”
Meaning, you allege there something which is 100% false and the court knows it, but you filed a motion to
dismiss, are you deemed to hypothetically admit something which everybody knows is false? NO. When you file
a motion to dismiss, you are deemed to admit everything there is true except matters which are 100% false and
which the court itself knows to be false, or the conclusions of the pleader because in the first place, conclusions
have no place in the pleading.
168
ROSITA TAN vs. COURT OF APPEALS
295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers on 2 parcels of land, Manila previously owned by one Alejandro
Tan Keh and which were then covered by TCT 35656.Fernando Tan Kiat claimed that he bought the
land from Tan Keh in 1954, but was unable to effect immediate transfer of title in his favor in view of
his foreign nationality at the time of the sale. Nonetheless, as an assurance in good faith of the
sales agreement, Tan Keh turned over to Kiat the owner's duplicate copy of TCT 35656 and, in
addition, executed a lease contract in favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to Remigio Tan, his brother and father of
Rosita Tan, with the understanding that the land are to be held in trust by Remigio for the benefit of
Kiat and that Remigio would execute the proper documents of transfer in favor of Kiat should Kiat at
anytime demand recovery of land.
TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was issued in the name of Remigio.
Another contract of lease was executed by Tan Keh and Remigio in favor of Kiat to further safeguard
Kiat's interest on the land, but Kiat never paid any rental and no demand whatsoever for the
payment thereof had been made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of Kiat's ownership of the land
and she promised to transfer the land to Kiat who by then had already acquired Filipino citizenship
by naturalization.
Rosita, however, never made good their promise to convey the land despite repeated demands
by Kiat. In fact, Rosita had the land fraudulently transferred to her name under TCT 117898. Thus,
the filing of the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint, claiming that: the complaint
stated no cause of action; the cause of action has long prescribed; the cause of action has long
been barred by a prior judgment; and, the claim has been waived, abandoned and/or extinguished
by laches and estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding to all the grounds set forth by
Rosita in her motion to dismiss. CA set aside the dismissal and ordered the remand of the case for
further proceedings.
HELD: There is merit in the petition. “There being no trust, express or implied, established in
favor of Kiat, the only transaction that can be gleaned from the allegations in the complaint is a
double sale, the controlling provision for which is Art. 1544 of the Civil Code. Kiat alleged that he
bought the subject properties from Tan Keh in 1954 but nonetheless failed to present any document
evidencing the same, while Remigio, as the other buyer, had in his name TCT 53284 duly registered
on Oct 13, 1958.”
“Remigio, beyond doubt, was the buyer entitled to the subject properties since the prevailing
rule is that in the double sale of real property, the buyer who is in possession of a Torrens title and
had the deed of sale registered must prevail. Rosita is in possession of TCT 117898 which evidences
her ownership of land. Kiat relies simply on the allegation that he is entitled to the properties by
virtue of a sale between him and Tan Keh who is now dead. Obviously, Kiat will rely on parol
evidence which, under the circumstances obtaining, cannot be allowed without violating the "Dead
Man's Statute" found in Sec. 23, Rule 130. Clearly then, from a reading of the complaint itself, the
complaint indeed does not spell out any cause of action.”
“We also agree with Rosita's submission that Kiat's cause of action has prescribed. TCT 53284 in
the name of Remigio was registered on Oct 13, 1958, while TCT 117898 in the name of Rosita, was
issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA held that the 10-year
prescriptive period for the reconveyance of property based on an implied trust cannot apply in this
case since Kiat was in actual possession of the subject properties.”
“However, Kiat's occupation of the land was never in the concept of an owner since he was a
mere lessee who is estopped from denying the title of Remigio as owner-lessor. It thus becomes
evident that the filing of Kiat's complaint in 1993 — 35 years after TCT 53284 in the name of
Remigio was registered and 18 years after the issuance of TCT 117898 in the name of Rosita — was
way beyond the 10-year time limit within which reconveyance of property based on an implied trust
should be instituted. Kiat's cause of action, assuming that it exists, has clearly prescribed.”
“Finally, Kiat is guilty of laches. Kiat's possession of the land cannot be made the basis to
deflect the effects of laches because he is a mere lessee who, to repeat, cannot assert any adverse
claim of ownership over the subject properties against the lessor-owner. What ought to be in focus
is that, Kiat was not able to effect the transfer of title over the subject properties in his favor upon
his purchase thereof from Tan Keh in 1954 because he was still a foreigner at that time. But Kiat
later on claimed that he was already a Filipino national when he reminded Rosita of his ownership of
the subject properties during Remigio s wake sometime in 1968.”
“It may be reasonably deduced from these allegations that Kiat acquired Filipino citizenship by
naturalization, thus entitling him to own properties in the 1960's, more or less. His mistake, if it is
one, is that he tarried for 30 years before formally laying claim to the subject properties before the
court. Considerable delay in asserting one's right before a court of justice is strongly persuasive of
the lack of merit of his claim, since it is human nature for a person to enforce his right when the
same is threatened or invaded. Thus, Kiat is estopped by laches from questioning the ownership of
the land.”
“WHEREFORE, the assailed decision of CA is SET ASIDE, and a new one is rendered DISMISSING
Fernando Tan Kiat's complaint.”
Q: Now, is there an exception to the rule that when the court determines whether there is a cause of action
or not, the court cannot look at the evidence – all must be based on the complaint and there should be no
appreciation of any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK
157 SCRA 100 [1987]
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FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary
injunction. So, it is not only a complaint but plaintiff applied for a provisional remedy. And under the
law in provisional remedy, that must be heard immediately because that is urgent, eh! And in a
preliminary injunction, there must be a hearing because preliminary injunction cannot be granted
ex parte.
So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already
presented evidence on his cause of action during the hearing for the issuance of the writ of
preliminary injunction. Then after the hearing, here comes now the defendant moving to dismiss the
entire case because there is no cause of action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the allegations in the complaint
and you do not look at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary
injunction, the court can now determine whether there is a cause of action also based on
the evidence. So that is the exception because there has been a reception of evidence
ahead of a motion to dismiss.
“It is true that the determination of the sufficiency of a cause of action must be
limited to the facts alleged in the Complaint and no other should be considered.
However, where a hearing was held and documentary evidence was presented, not on
the Motion to Dismiss but on the question of granting or denying an application for a
Writ of Preliminary Injunction, a motion to dismiss for insufficiency of cause of action
will be granted if documentary evidence admitted by stipulation disclosing facts
sufficient to defeat the claim which authorizes the court to go beyond disclosure in the
complaint.”
So that would be the exception: where evidence has already been presented in the main cause
of action because of the application for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING
HAS BEEN PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing obligation are Payment, Performance,
Condonation, Compensation, Remission, etc. So if I have already paid a sum of money and you are filing a case
to collect such amount, I can file a motion to dismiss on the ground that the claim or demand set forth in the
complaint has already been paid or otherwise extinguished.
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS
UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS
Statute of Frauds are contracts under Article 1403 of the Civil Code which are unenforceable if not made in
writing. However there is still a valid contract, only they are unenforceable because they were not reduced into
writing.
EXAMPLES of Statute of Frauds under Article 1403:
1.) a contract that by its terms is not to be performed within one year from the making of
such contract;
2.) a special promise to answer for the debt, default, or miscarriage of another;
3.) an agreement made in consideration of marriage, other than a mutual promise to marry;
4.) an agreement for the sale of goods, chattels or things in action, at a price not less than
five hundred pesos…;
5.) an agreement for the leasing for a longer period than one year, or for the sale of real
property or an interest therein;
6.) a representation as to the credit of a third person.
Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE CLAIM
HAS NOT BEEN COMPLIED WITH.
Meaning, the law requires something to be done before going to court and if you file the case in court
immediately without complying with that condition precedent, then the defendant can move for dismissal of the
complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;
2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or compromise the suit at the
barangay level before raising the action in court. If nothing will happen then proceed the case to
court.
3.) Article 151 of the Family Code contemplates suit between family members.
It must be alleged in the complaint that earnest efforts towards a compromise is made between:
husband and wife, parents and children, ascendants and descendants, brothers and sisters, whether full or
half blood. So you are not allowed to file a case directly between family members in order to preserve the
family as a basic social institution being the foundation of the nation.
So it should appear form a verified complaint or petition that earnest efforts toward a compromise have
been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.
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Q: What about a suit to a nephew?
A: Article 151 will not apply. One can file directly to the court because even though he is your relative he is
not a member of your family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It is a mixed case, there is already a stranger
included. Pag-nahaluan na, Article 151 will not apply anymore.
Now, under the last sentence of Article 151, “This rule shall not apply to cases which may not be the subject
of compromise under the Civil Code.” This refer to Article 2035 of the New Civil Code:
Art. 2035. No compromise upon the following questions shall be valid:
1.
2.
3.
4.
5.
6.
The civil status of persons;
The validity of a marriage or a legal separation;
Any ground for legal separation;
Future support;
The jurisdiction of courts;
Future legitime.
So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan. If a person claiming to be the son of
your father and you wish to avoid delay, you will seek to compromise, this cannot be done. As well as saying
you are single even if you are married in order to facilitate things, this cannot be done.
Under the 1964 Rules, this last ground (non-compliance with a condition precedent requirement) is not
found therein. However, there is a ground that is no longer found in the present Rules of Court, that the suit
between members of the family and that no earnest efforts towards a compromise has been made, this was
stated as the last ground. It does not mean, however, that it can no longer be applied. This has been
incorporated under paragraph [j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit
their arguments on the questions of law and their evidence on the questions of fact
involved except those not available at that time. Should the case go to trial, the
evidence presented during the hearing shall automatically be part of the evidence of
the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is allowed to present evidence to prove his claim.
Like for example: the venue is not properly laid or the action is already extinguished by payment or the action is
already barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present
evidence to prove the ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph [b]); or
2.) The pleading asserting the claim states no cause of action (paragraph [g])
When these are the grounds invoked, the defendant is not allowed to present evidence because you are
hypothetically admitting all the allegations in the complaint as true and correct. You are not allowed to dispute
or deny those allegations. It shall be based purely on the allegations of the complaint so you are not allowed to
prove that those allegations are not true.
And should the case go to trial, the evidence presented shall automatically form part of the evidence of the
party presenting the same. There is no need to present those evidence again during the trial because the
evidence during the hearing is automatically part of the evidence during the trial. This is similar to the rule on
Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons
therefor. (3a)
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
When the court orders the amendment of the pleading, in effect the motion to dismiss is also denied. So,
the rule is when the ground for the dismissal can be cured by amending the complaint, do not dismiss but
require the party to amend the complaint. That is a polite way of denying your motion to dismiss.
Like for example, the cause of action is imperfectly stated, kulang ng allegation ba. So the plaintiff would
say: “Your Honor, we will add one sentence para makumpleto.” Sabi ng judge: “No! no! no! We will dismiss.” No,
the judge cannot do that. Curable yon eh! And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant files a motion to dismiss, can the plaintiff still
amend his complaint? Otherwise stated, can the plaintiff still amend his complaint when there is already a
motion to dismiss?
171
A: Ah YES! Because it is the right of the plaintiff to amend his complaint before a responsive
pleading is served upon him. And a motion to dismiss is not a responsive pleading. It is not even a
pleading (Guirao vs. Ver, April 29, 1966) The responsive pleading to the complaint is the Answer.
Q: Now, suppose there is already an order of dismissal in which the court has already ordered the dismissal
of the case, because it does not state the cause of action of the complaint. Plaintiff: “Alright! Motion to amend
the complaint to state the cause of action and set aside the order of dismissal.” Can that still be done at that
stage where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final and executory because the
rule is absolute: for as long as there is still no responsive pleading, the right of the plaintiff to
amend his complaint is a matter of right.
The second paragraph of the section “The court shall not defer the resolution…” is an amendment of the
previous rule. Under the previous rule, the court had four options: 1) grant the motion; 2) deny; 3)order
amendment; and 4) defer the resolution for the reason that the ground relied upon is not indubitable. What
does it mean?
‘Indubitable’ means without a doubt, thus the ground was not without a doubt, it is doubtful, it is not
indubitable. EXAMPLE: Defendant filed a motion to dismiss the case and the court analyzed the ground. After
analyzing, the court is not sure. The ground seems to be valid but the court also doubts. Parang 50-50 ba.
Now the previous rule allows the court not to act—it will not act, it will not deny. The court will just
postpone the resolution of the motion to dismiss, until the trial, because the ground is doubtful. In the course of
the trial, the court may realize whether the ground is correct or not. When the ground becomes clearer, the
court may say, “All right, I will grant the motion”. That was allowed under the previous rule.
NOW, that is not allowed anymore. The court really has to act on the motion: either grant it,
deny it, or order the amendment.
Even under the previous rule, there were already instances where the SC said that the courts should not
postpone the resolution, especially when the ground of dismissal is lack of jurisdiction over the subject matter,
or that the complaint states no cause of action. Why? The court only has to read the complaint and there is no
need of presentation of evidence to rule on the motion. There were decided cases along that line, and
obviously that reasoning predominated the committee.
The last paragraph is self-explanatory, whether the Court denies or grants the Motion, it must support its
Order.
Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer
within the balance of the period prescribed by Rule 11 to which he was entitled at
the time of serving his motion, but not less than five (5) days in any event, computed
from his receipt of the notice of the denial. If the pleading is ordered to be amended,
he shall file his answer within the period prescribed by Rule 11 counted from service
of the amended pleading, unless the court provides a longer period. (4a)
Q: Suppose defendant files a motion to dismiss and the court granted the motion. The case is dismissed.
What happens to the case?
A: No more case. The defendant has no more problem because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?
A: Defendant is now obliged to file his answer. Under Rule 11, he has 15 days to file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like for example, after consuming 8 days,
he files a motion to dismiss, the running of the period stops. After a while, he receives an order denying his
motion. How many more days does he have?
A: Seven (7) days only. He must file his answer within the remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964 Rules, when you file a motion to dismiss
on the eight day, and the motion is denied, you have 15 days all over again to file an answer. NOW, no more –
you only have the remaining balance of the 15-day period.
Q: Now, suppose you file your motion to dismiss on the 13th day, so, two days to go. If your motion is
denied, do you only have two days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is identical with Rule 12, Section 5
on Bills of Particular:
Rule 12, Sec. 5. Stay of period to file responsive pleading. - After service of the bill of
particulars or of a more definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading with the period to which he was
entitled at the time of filing his motion, which shall not be less than five (5) days in
any event. (1[b]a)
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a
motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar
the refiling of the same action or claim. (n)
Normally, when the motion to dismiss is granted, it does not prevent the plaintiff from re-filing the case.
Like for example, the case is dismissed for lack of jurisdiction over the subject matter. I can re-file that in the
proper court. Or, suppose the case is dismissed for improper venue, so I will file it in the proper venue.
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But there is a new provision, that is, if the ground for a motion to dismiss are the following you cannot re-file
it anymore. That is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata, statute of limitations,
prescription of the claim or statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh kasi res judicata na, tapos magpa-file ka
na naman ng panibago? Hindi na puwede yan. Or, it is already dismissed because the obligation has already
been paid, then you will file? That cannot be done anymore. So, in other words, it is res judicata already. So to
summarize:
GENERAL RULE: A case that has been dismissed can be re-filed.
EXCEPTIONS: When the case was dismissed on the following grounds:
1.) That the cause of action is barred by a prior judgment or by the statute of limitations;
2.) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished; or
3.) That the claim on which the action is founded is unenforceable under the provisions of
the Statute of Frauds.
Q: For example, the court says: “Your action is barred by res judicata.” But actually, the court is wrong,
what is your REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to re-file the case because that would
already be res adjudicata. That is common sense.
Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been
filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an
affirmative defense in the answer and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be without prejudice to
the prosecution in the same or separate action of a counterclaim pleaded in the
answer. (n)
Q: For example, I’m a defendant, I receive a complaint and I believe I have a ground for a Motion to Dismiss
under Section 1 from [a] to [j]. I will not file a motion to dismiss, instead, I will file an answer, is that allowed?
A: Yes, because it is OPTIONAL for a defendant to file a motion to dismiss. And I can file my answer and a
grounds for dismissal can be raised as an affirmative defense.
So the grounds for a motion to dismiss are convertible. Instead of filing a motion to dismiss, I will allege the
grounds as affirmative defenses, like—no cause of action, litis pendentia, res adjudicata, payment, statute of
frauds, prescription…
Now, if you will file an answer raising the ground for a motion to dismiss as an affirmative defense, then you
are prolonging the agony because if the court has no jurisdiction, or there is improper venue or whatever it is, if
you file a motion to dismiss in the first place and you are sustained, then tapos na sana! Bakit patagaling mo pa
by filing an answer eh pwede naman pala i-raise yung mga yun in a motion to dismiss? Because of this, trial will
proceed. And after the plaintiff has rested the case, that is the only time you will prove your defense. So, why
do you prolong the agony?
Under Section 6, after filing of such answer, the defendant can ask for a preliminary hearing on his
affirmative defenses as if a motion to dismiss has been filed. Meaning, this should be heard ahead. And if the
court grants the preliminary hearing, you can move your affirmative defenses ahead and if you correct, the
court will dismiss the case. So, it has the same effect as if you file a motion to dismiss. That is why a preliminary
hearing may be had as a motion to dismiss.
Now, you ask me why should the defendant do this? Di, mabuti pa na mag-file na lang siya ng motion to
dismiss – doon din pala and babaksakan eh. Why file an answer and then preliminary hearing? Because this is a
matter of strategy on trial technique. If I will file a motion to dismiss which is not a responsive
pleading, the plaintiff may amend the complaint, and I cannot prevent him from amending because
the amendment is still a matter of right at that moment.
So if I will file an answer instead, sabihin ng plaintiff, “Tama no? Ok, I will amend the complaint.” Defendant:
“No! No! No! No! Hindi na puwede because may responsive pleading na! Amendment is not anymore a matter
of right.” That would be the purpose of the defendant in not filing a motion to dismiss.
That follows the general principle in trial technique. Do not expose your adversary’s mistake when he is in
a position to correct them. When the point is reached when he cannot anymore correct the error, then, dyan
mo na ilabas. Huwag kang magmadali, maghintay ka. That is the advice in trial technique.
The second paragraph of Section 6 is new:
The dismissal of the complaint under this section shall be without prejudice to
the prosecution in the same or separate action of a counterclaim pleaded in the
answer. (n)
Q: Suppose I will file an answer with affirmative defenses and with a counterclaim. If the court dismisses the
complaint, what happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a separate action; or
2.) The defendant can dismiss the complaint but the counterclaim remains alive.
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In the OLD RULES, when the main case is dismissed, the counterclaim is automatically dismissed, lalo na
‘yong compulsory. If the defendant moved to dismiss the case, in effect he was also moving to dismiss his
counterclaim. That is what the SC said in the case of
INT’L CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS
214 SCRA 456 [OBSOLETE!]
HELD: “A compulsory counterclaim is so intertwined with the complaint that it would not remain
pending for independent adjudication by the court after the dismissal of the complaint which had
provoked the counterclaim in the first place. As a consequence, the dismissal of the complaint
operated also to dismiss the counterclaim questioning the complaint. When defendant moved to
dismiss the main action, he also moved, in effect, for the dismissal of the counterclaim.”
That is the prior rule. That ruling is already OBSOLETE because of this new paragraph, “The dismissal of the
complaint under this section shall be without prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer.”
NOW, you can move to dismiss the complaint. Ang counterclaim mo buhay pa rin. And you can continue to
insist that on a trial.
Rule 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of
a motion for summary judgment. Upon such notice being filed, the court shall issue
an order confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an adjudication upon
the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim. (1a)
Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his
own complaint?
A: YES. And it is a matter of right.
Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for
Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the
right to dismiss his own complaint by simply sending the court what is known as a notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is no
answer yet.
Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the dismissal.
The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until
confirmed by the court. This is keeping with the respect due to the court.
Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice – the case can no longer be re-filed;
2. Dismissal without prejudice –the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed.
EXCEPTIONS:
1.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing
his own complaint with prejudice; OR
2.) When a notice operates as an adjudication upon the merits when filed by a plaintiff who
has once dismissed in a competent court an action based on or including the same
claim.. This is the TWO-DISMISSAL RULE.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay him. So he filed
a case against me to collect the unpaid loan. Upon receipt of the summons, I approach Mr. Castaños, “Huwag
mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. Idismiss mo na lang iyan, babayaran kita next month, wala lang akong kuwarta ngayon. I will refund you for the
filing fee”. Ngayon, payag siya. He will send a notice to the court dismissing his complaint. The case is
dismissed, without prejudice.
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After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint, pangalawa
na. I now receive another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh, sabi mo, after one
month magbabayad ka.” “Wala lang akong kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na
ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang ginasta mo sa filing fee.” Tapos, naatik
na naman siya. So he files a notice of dismissal again, doble. The same case was dismissed twice. He availed
of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for
the third time. I receive the summons. You know what I will do? I will file a motion to dismiss the case because
the second dismissal is automatically with prejudice.
This is known as the 2-dismissal rule. You cannot file it for the third time.
Briefly, the two-dismissal rule simply means that when the same complaint had twice been dismissed by
the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice.
Yaann!
Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and had it
dismissed under Section 1. And then after having dismissed, you changed again your mind and you want to refile the action. Now, How do you re-file it the action? Do you file another complaint again?
A: That was answered in the case of
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO
234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has already become final.
a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask
the court to set aside the order of dismissal and re-vive the case because the order of
dismissal have not yet become final.
b.) However, if the order of the court dismissing the complaint based on your own notice
has become final after 15 days, then the only way you can revive it is to file an entirely
new action.
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding
section, a complaint shall not be dismissed at the plaintiff's instance save upon
approval of the court and upon such terms and conditions as the court deems proper.
If a counterclaim has been pleaded by a defendant prior to the service upon him of
the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to the right of the defendant to prosecute
his counterclaim in a separate action unless within fifteen (15) days from notice of
the motion he manifests his preference to have his counterclaim resolved in the
same action. Unless otherwise specified in the order, a dismissal under this
paragraph shall be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court. (2a)
Q: If the defendant has already filed an answer or a motion for summary judgment, may the complaint still
be dismissed by the plaintiff?
A: YES, but it is already upon the approval of the court and upon such terms and conditions as the court
deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right because the
defendant has already filed an answer or a motion for summary judgment.
Q: Suppose I file a case against you and you file an answer with counter claim, and I filed a notice dismissing
my own complaint. Can it be done? What happens to the counterclaim?
A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the
counterclaim. So a compulsory counterclaim remains despite the dismissal of the com plaint. The
dismissal shall be limited to the complaint.
Of course, generally, if we follow the language of the law, when you dismiss the complaint, the
counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to
have his counterclaim resolve in the same action.
GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed.
EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the
radical change. The cases that we cited before are now bahaw.
Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file the
case?
A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be without
prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is
generally without prejudice.
The last sentence, “A class suit shall not be dismissed or compromised without the approval of
the court.” When you file a class suit, you are not only fighting for yourself – you are fighting for the others.
So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, in order to
prevent the person who filed it from prejudicing the right of the members of the class suit, it cannot be
dismissed or compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails
to appear on the date of the presentation of his evidence in chief on the complaint,
or to prosecute his action for an unreasonable length of time, or to comply with
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these Rules or any order of the court, the complaint may be dismissed upon motion
of the defendant or upon the court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless otherwise
declared by the court. (3a)
Q: What are the grounds for the dismissal of the case under Section 3?
A: The following are the grounds for the dismissal of a case under Section 3:
1.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on
the complaint;
2.) The plaintiff fails to prosecute his action for an unreasonable length of time;
3.) The plaintiff fails to comply with the Rules of Court or any order of the court for no
justifiable reason or cause.
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS
EVIDENCE-IN-CHIEF ON THE COMPLAINT
Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action.
So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint,
the case can be dismissed. This has been taken from the ruling of the SC in the case of:
JALOVER vs. YTORIAGA
80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his evidence and then he rested. And
then during the hearing of the presentation of the defendant’s evidence, plaintiff failed to appear.
And since he failed to appear during trial, the court dismissed the case.
HELD: The dismissal is WRONG. Why dismiss the case when he has already presented his
evidence? It is tantamount to deciding the case against the plaintiff without considering the
evidence that he has presented. What is the remedy then?
What the court should do is to proceed with the presentation of the defendant’s evidence
without the plaintiff. Do not dismiss the case the plaintiff has already presented his evidence.
That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But the
rules of court now wants to avoid the word ‘non-suited’ because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived
a little bit late, or he failed to appear because he failed to receive the notice setting it, that is
different because the law says, “for no justifiable cause.” If I am late but a few minutes only, that
is not a good basis to dismiss the case forever. There is no intentional failure not to appear. In
which case, if there is an order of dismissal, it should be set aside because the condition is “for no
justifiable cause.”
If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that the trial
shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he already filed an
answer.
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION
FOR UNREASONABLE LENGTH OF TIME.
EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he postpones.
The next hearing, he postpones again. That’s one interpretation.
Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case
has not been set for pre-trial, the plaintiff did not take the initiative to have the case set for
pre-trial. For more than one year, the case has not been set for pre-trial and the plaintiff is not
moving. Ikaw ang plaintiff, ikaw ang kumilos!
Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the
plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot supply the
court of the correct address of the defendant. The judge cannot have the case docketed in court forever.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR
ANY ORDER OF THE COURT.
EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff refuse to
amend. The court will dismiss the case.
Remember that case I cited where the complaint was filed in the name of for example, “PANINGKAMOT
STORE vs. SO and SO.” The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person. It is
only the name of the business establishment. Only natural person or juridical persons may be subject of the
suit.
Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the owner of
the store. So the court directs the plaintiff to amend. Ayaw mo i -amend ha? This time i-dismiss ko for failure to
comply with the court’s order.
Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum shopping.
Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s
own motion (motu propio).”
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Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the
grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the
defect.
Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?).
A: The following
1. Section 3, Rule 17 (Plaintiff’s fault);
2. When on its face, the complaint shows that the court has no jurisdiction over the subject
matter;
3. When there is litis pendentia; or res adjudicata; or when the action has prescribed;
4. Under the Summary Rules, the court is empowered to dismiss immediately without any
motion.
Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice to the
right of the defendant to prosecute his counterclaim in the same or separate action. Again, the dismissal of
the main action or compliant does not mean the dismissal of the counterclaim. This is the same with
Section 2.
Q: If the complaint is dismissed under Section 3, can it still be re-filed?
A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning,
res adjudicata applies, as if the case has already been decided. Therefore the elements of res
adjudicata should also be present. The dismissal is with prejudice unless otherwise declared by the
court.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice.
EXCEPTION: Unless the court provides otherwise.
EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under
Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice.
(General Rule)
Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without
prejudice.” Can the case be re-filed? YES. (Exception)
On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when we say
res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be
summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to
look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute.
And the order of dismissal was silent. So, following Section 3, the dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed
the compliant. Defendant moved to dismiss because when the first complaint was dismissed and
the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res
adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction
over the case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the
defendant because he was never served with summons. Therefore, such dismissal did
not have the effect of res adjudicata.
Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of
the case, and the parties in the previous case in order that the dismissal be with prejudice.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of
this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this
Rule, shall be made before a responsive pleading or a motion for summary judgment
is served or, if there is none, before the introduction of evidence at the trial or
hearing. (4a)
It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at any
time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss
his claim under Section 1, Rule 17.
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Rule 18
PRE-TRIAL
Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that no
case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.
Section 1. When conducted. After the last pleading has been served and filed, it
shall be the duty of the plaintiff to promptly move ex parte that the case be set for
pre-trial. (5a, R20)
In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to move
ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial
period.
Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases, the
pre-trial is MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is
the duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pretrial can be filed ex parte, an exception to the rule that no motion can be filed ex parte.
Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative
modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
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(g) The propriety of rendering judgment on the pleadings, or summary judgment,
or of dismissing the action should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a,
R20)
(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE
MODES OF DISPUTE RESOLUTION
Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get
something from me and I get something from you. Then we will submit out agreement to the court. In an
amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.
There was an article where it says that one of the best gauge of a good lawyer is not that he has many
cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a bad
lawyer is one whose cases always end up in trial – he has many cases and he does not have the time anymore
to study each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of the
United State, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to compromise
whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste
of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be
business enough.” Meaning, if you are a lawyer, you have a strong influence to convince your client to settle
the problem with his opponent. You do not have to worry about losing fees for there are still cases to come.
Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and
effort.
“…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without passing
to court, ba. This is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan,
matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng building. You quarrel
with your contractor whether the building is properly constructed or not. That kind of dispute has to pass
through arbitration like contractors. They will be the one to judge because they are experts in construction. So
it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of dispute
resolution.
Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre-trial
was a failure? NO, go to [b] to [i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or lessened/reduced to the most important and relevant
ones.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;
Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still
amend their complaint or answer. That means that amendments of pleadings are favored even at this stage.
Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC
21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity
for amending the complaint. It was amended. Is there a need for a new pre-trial for the amended
complaint?
ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does
not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the
parties agree to conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is no need of proving them in court
because we already agreed. Such will hasten the trial because matters validly agreed upon can be dispensed
with (e.g., size of the land, improvements thereon, stipulations, due execution of documents, etc.)
Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate facts
under the threat of dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO.
160 SCRA 333
HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts
and issues that may possibly crop up in a particular case, upon pain of dismissal of such case. The
process of securing admissions whether of facts or evidence is essentially voluntary, since
stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert
statements made therein.
(e) THE LIMITATION OF THE NUMBER OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask, “Mr. Plaintiff, how many witnesses will you
present?” The plaintiff will say that he will present one hundred witnesses. So the court will start asking, “Why
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so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10? Anyway, what one witness
will say will just be the same as what the other witness will say.”
That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses will
be reduced in number.
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;
This refer to Rule 32 the title of which is “Trial by Commissioners.” A commissioner is a person who may be
appointed by a judge to assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing each other because according to plaintiff,
“You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa.” But defendant said,
“No, no, no! Based on my record, overpaid pa ako.” That can happen where there has be confusion already on
the invoices and receipts. Now, if we will try this case in court it will take time because you have to present to
the judge every receipt, every invoice. And these invoices may number by hundreds. And what is worse is that
the judge is not an accountant so he will have a hard time reconciling these receipts and invoices.
Suppose the judge will say, “Alright, since this is a matter of accounting, I will appoint a CPA to assist me.
You can choose whoever this accountant or he may be appointed by this court. Then you go to him and
present all your documents. And then he will now analyze and then submit to me his findings. Based on his
findings we will find out whether the defendant still owes the plaintiff or there is no more utang.”
That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if
the judge will go over the documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, “Your fence has already
encroached on my property.” Defendant answers, “No, no, no. This is the boundary.” So bakbakan na naman
kayo. The court will ask,” Is it true you encroached on his property?” How will the court know that? I think that
is very technical. It is a geodetic engineer surveyor to resolve the issue. He will plot the measurement and
then he will submit a sketch. Then we will find out if there is an encroachment or not.
As far as the judge is concerned, he does not know anything about description of the land, he is not a
surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What
do you call this surveyor? He is a commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR
OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE FOUND TO EXIST;
Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But we will not take them up because they will be
taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary judgment are remedies or
procedure devised under the Rules of court for the speedy determination of a civil case. It is one way of
speedily terminating a civil case. Once it is rendered, tapos na ang kaso.
The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary judgment if
there is a ground. In the same manner, the court may order the dismissal of the action should a valid ground
therefor be found to exist because it is possible that based on the complaint, there is no ground to dismiss but
in the course of pre-trial, the plaintiff may admit something which turns out to be a ground for dismissal.
EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago and did not
pay. But during the pre-trial, defendant said, “Actually, judge, hindi man yan three years ago. That was thirty
years ago!” Plaintiff answered, “Actually, judge, totoo yan.” So judge said, “My golly, the action has prescribed
so I will order the dismissal.” These things can come out in the pre-trial.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;
This means that the case will be suspended, nothing will happen in the meantime. Hindi naman dismissed.
The case will just be held in abeyance.
EXAMPLE: Suppose the parties will say, “Judge, so far we cannot settle. But maybe if you will give us one or
two months we will be able to come up with a solution. We will meet once every three days para magistorya.” I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige! Because the law
encourages amicable settlement.
Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are talking about
now? What are the possible grounds for suspending the proceedings in a civil case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The suspension of actions shall be governed by the
provisions of the Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expressed by one or both
parties; or
2. If it appears that one of the parties, before the commencement of the action
or proceeding, offered to discuss a possible compromise but the other party refused
the offer.
The duration and terms of the suspension of the civil action or proceeding and
similar matters shall be governed by such provisions of the rules of court as the
Supreme Court shall promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
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So a civil action may be suspended if at any time one of the parties offered to discuss a possible
compromise because the policy of the law is to have civil cases settled between the parties amicably. Let the
parties talk among themselves to come up with the possibility of amicable settlement even if one of the parties
refuse to accept such an offer.
(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.
That is very broad – any other matter which will hasten the case. Anything under the sun can fall under this.
PURPOSE OF A PRE-TRIAL
A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case immediately
because of amicable settlement. If the parties can settle, then there is no need to proceed to trial. But if for
valid or serious reason they cannot settle, because the court can only encourage and not force a settlement,
then they shall proceed with the pre-trial to find out if we can have the case tried speedily and decided
immediately by talking about other things like amending the pleadings, stipulation of facts, admission of
documents to avoid unnecessary proofs, limitation in the number of witnesses. So if we cannot settle, we can
talk of other things to speedily terminate the case. Instead of trying the case for two years, we can probably
finish in six months.
DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is actually the
bible on pre-trial. And this is what exactly Justice Narvasa said:
HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so since
January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of
things is not fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it
is only complied with for the sake of compliance.] Some courts consider it a mere technicality,
serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff,
or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device
is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the
simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great
pity, because the objective is attainable, and with not much difficulty, if the device were more
intelligently and extensively handled.”
The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on
the party who has no counsel. The counsel served with such notice is charged with
the duty of notifying the party represented by him. (n)
This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply
with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set
for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial shall be served
on counsel or on the party who has no counsel.
Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party –
dalawang notice – notice to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to
simplify the job of the court processor, the rule is, notice to the counsel is now notice to the party.
ARCILLA vs. ARCILLA
138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all the parties are notified through
their lawyers pursuant to Section 3. They appeared but somehow the pre-trial was terminated on
July 29. The court decided to reset the pre-trial on Oct. 2. The parties agreed. Normally, the
procedure is, when that happens, there will be another written notice. There should be another
written notice sent to the lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With
that, he was declared to have lost his rights to present his side. He was considered in default. He
questioned the order on the ground that he did not receive any notice on the Oct. 2 pre-trial
conference. Therefore, all subsequent proceedings, including the judgment rendered against the
defendant were void. Is he correct?
HELD: “At first blush, petitioner’s aforesaid contention appears very tenable, for indeed it is
settled that a declaration of default, in the absence of a notice of pre-trial constitutes denial of due
process. But a deeper examination of the pleadings and the record of the case would show that
petitioner was present during the pre trial conference on July 29, 1975 when the lower court re-set
the pre-trial to October 2, 1975. On the said date, however, although notified, both petitioner and
his counsel did not appear, hence, the declaration of default.”
So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY earlier, he
failed to appear that is why he was penalized under Section 5. When the court reset the pre-trial, he agreed.
He already knew. Notification need not be too technical. Despite the lack of a written notice, the defendant
was penalized in the ARCILLA case.
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Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to
appear at the pre-trial. The non-appearance of a party may be excused only if a valid
cause is shown therefor or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to alternative
modes of dispute resolution, and to enter into stipulations or admissions of facts and
of documents. (n)
There must be notice of pre-trial which will be issued after you comply with Section 1. Then there will be a
schedule. The notice will be served upon the counsel or upon a party, assuming that he is not represented by a
lawyer. The counsel served with such notice is charged with the duty of notifying the party represented by him.
And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial.
Meaning, the lawyer alone who is there will not suffice. Kailangan dalawa kayo.
Q: Suppose the lawyer will say, “Well, your honor, I am here. Anyway, appearance by counsel is
appearance by party.” Puwede ba yan?
A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his counsel
because the purpose of a pre-trial is to consider the possibility of an amicable settlement.
Q: Can the lawyer enter into an amicable settlement with the adverse party?
A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter of
bargaining.
EXAMPLE: Defendant says, “Yung interest na na-due, hatiin na lang natin. You condone half of it, and
bayaran ko is fifty percent na lang. And give me 24 months to pay.” The lawyer says okay. Then pag sabi mo
sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties and their should both
be present. And that is also the reason why a notice of pre-trial should be given to the party.
Section 3 says “a counsel served with such notice is charged with the duty of notifying the party
represented by him.” That is new provision. The OLD LAW is, based on decided cases, aside from notice to the
lawyer, there must be another notice to the party. So if you notify the lawyer but you did not send a separate
notice to the party and therefore the party did not appear, you cannot take it against him. Under Rule 13,
notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old jurisprudence – OBSOLETE!
But the PRESENT RULE is: Notice to lawyer is notice to party.
Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in his behalf
duly authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute
resolution, etc.
EXAMPLE: You tell your client, “We will have a pre-trial next week and your presence is necessary.” Client:
“But I am leaving for America tomorrow. I cannot be there.” Lawyer: “Is there anybody whom you can
authorize, take your place?” Client: “Yes, my brother or my manager.” Lawyer: “Okay, you write a written
authority that you are authorizing your brother to appear in your behalf with full power to settle.” Yan and
tinatawag na “Power of Attorney.” Intiendes?
Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who is given
the Power of Attorney authorizing him to enter into an amicable settlement. Walang Problema yan. Otherwise,
you will see in the next section what is the effect if you fail to appear in a pre-trial –automatic, talo ka sa kaso.
Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear because it has no
physical existence. Who is authorized to appear in a pre-trial in order to enter into an amicable settlement? Are
the managers or vice-president, authorized to appear in a pre-trial in behalf of the bank which is a party to the
case?
A: NO! Even the president or the chairman of the board has no power.
Q: Who can bind a Corporation?
A: Only the Board of Directors has the authority to bind a corporation.
Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao, am I
saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend the pre-trial
and pass a resolution inside the courtroom?
A: No. The Board can pass a resolution naming the person who will represent the corporation.
So, the manager for example, can appear in the pre-trial provided he is authorized through a board
resolution.
Again, the RULE is: Both the lawyer and the party should appear in the pre -trial because the first purpose of
pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to enter into an
amicable settlement.
Non-appearance may be EXCUSED only if:
1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA)
2. For a valid cause – example, if you are sick.
Q: If it is a corporation, what is that authority?
A: It is a board resolution because only the board of directors has the authority to bind the
corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
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Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so
required pursuant to the next preceding section shall be cause for dismissal of the
action. The dismissal shall be with prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the plaintiff
to present his evidence ex parte and the court to render judgment on the basis
thereof. (2a, R20)
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?
If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the dismissal is
with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3: Failure to
appear during the trial for the presentation of his evidence-in-chief. So, if the plaintiff fails to appear during the
trial when it is his turn to present his evidence, under Rule 17, his case shall be dismissed and generally the
dismissal is with prejudice, an adjudication upon the merits. (Res Adjudicata applies).
The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for dismissal of the
action.
Q: Is there any difference between non-suited and dismissal of action?
A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS
224 SCRA 163 [OBSOLETE!]
HELD: When the defendant moves to dismiss the case, then you are also killing your
counterclaim. If you are, the defendant you should not move for the dismissal. You only move to
declare the as non-suited because when the plaintiff is non-suited, he is bared from proving his
cause of action but the case is not dismissed. Since the case is not dismissed, it is like the plaintiff
who is in default.
Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive. So,
the ruling in BA FINANCE CORP. is now OBSOLETE.
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?
A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the
plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof.
You will notice that if it is the defendant who failed to appear under the old law, he will be considered as in
default. NOW, the word ‘default’ is avoided – “it shall be a cause to allow the plaintiff to present his evidence ex
parte and the court to render judgment on the basis thereof.” That is the same effect as the old rule.
Q: Why is the new rules avoiding the word ‘default’?
A: Because, strictly you cannot really have the defendant declared in default when he has filed an answer.
Kaya nga the Rules of Court was very clear in the ‘64 Rules by saying “considered as in default” to distinguish it
. But the confusion is still there eh. In other words, to avoid confusion, the plaintiff will be allowed to present
evidence ex parte. Para na ring ‘in default’ without using the word ‘default.’
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party. So
parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule 9 on
default, the proper motion for the defendant in default is to file a motion to lift the order of default on the
ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for the defendant who failed
to appear in the pre-trial?
A: NO, that is the case of
JUNGCO vs. COURT OF APPEALS
179 SCRA 213 [1989]
HELD: Under Rule 9 on default, if you are declared in default, you only file a motion
to lift the order of default and you have to allege that you have a meritorious defense.
But in Rule 18, when you file a motion, it is a simply a motion for reconsideration where
you will state the reason why you failed to appear and ask that the order be
reconsidered and that the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious because you have
already filed an answer. The defense is already there. Unlike in defaulted defendant,
the court has no idea what is your answer kaya nga you must convince the court that
you have a meritorious defense.
So a simple MOTION FOR RECONSIDERATION is sufficient.
Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for
reconsideration. The court reconsidered and recalled the plaintiff’s ex-party presentation of evidence. Do we
they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
EXCEPTION: YOUNG vs. CA, 204 SCRA 584
General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the
plaintiff continue and just let the defendant cross-examine the plaintiff’s witnesses. As a
general rule a second pre-trial cannot be granted, the remedy instead is to go to trial.
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Exception: YOUNG vs. COURT OF APPEALS
204 SCRA 584 [1991]
HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the
complaint is dismissed or after the court allows the plaintiff to present his evidence ex-party. The
order lifting it does not revert the action to its pre-trial stage, or authorize, much less, a
second pre-trial UNLESS the parties themselves had voluntarily agreed that the case be
set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing, after
such lifting, to hold a pre-trial and to effectively accomplish its objectives.”
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse
party, in such manner as shall ensure their receipt thereof at least three (3) days
before the date of the pre-trial, their respective pre-trial briefs which shall contain,
among others:
(a) A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves
of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their
respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at
the pre-trial. (n)
This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not new
because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission
of pre-trial briefs by lawyers has been required by that Circular. This circular is now incorporated.
Take note that at least three(3) days before the date of pre-trial the parties’ lawyers should file
pre-trial briefs to be furnished with each other. In that brief, you summarize everything covered by
your pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and
answer, only the document where you condensed everything will be read. It contains: Cause of action;
defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or exhibits
you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a summary
of everything that is going to happen from the beginning of the trial up to the end.
Q: What happens if a party fails to file a pre-trial brief?
A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to
appear a the pre-trial conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his
complaint may be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that
would be a cause for the court to allow the plaintiff to present his evidence ex-parte.
Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be penalized
by the court with a dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to
prove his cause of action (Rule 17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed to
present his evidence ex parte and judgment be rendered based purely on such evidence?
A: In the following instances:
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon
the termination thereof, the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments
allowed to the pleadings, and the agreements or admissions made by the parties as
to any of the matters considered. Should the action proceed to trial, the order shall
explicitly define and limit the issues to be tried. The contents of the order shall
control the subsequent course of the action, unless modified before trial to prevent
manifest injustice. (5a, R20)
A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not done in
open court but inside the chamber of the judge where the atmosphere is more relaxed because you are going to
talk about settlement, eh. However, do not believe that that is just a decoration. That is an official proceeding.
Everything there is recorded. According to section 7, after a pre-trial conference is terminated, the court will
issue what is known as pre-trial order. That is now expressly required by the rules.
A pre-trial order should state or should summarize everything what was taken up in a pre-trial
conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the
third sentence: “Should the action proceed to trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall control the subsequent course of the action,
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unless modified before trial to prevent manifest injustice.” It may be an ordinary sentence but the
effect of that is terrible.
Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can
determine the issues based on the admissions and denials in the answer. For instance, there are five issues,
they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject other issues which
are not important with the agreement of the parties. Thus, there may be only one real issue like whether or not
the loan has been paid. The court may then issue a pre-trial order containing such issue. The defendant may
have also several defenses in his answer. After the pre-trial order is issued, such order should be followed.
Forget the complaint and the answer.
In effect, the complaint and the answer has already been superseded by the pre-trial order.
This section in effect says that the pre-trial order supersedes the pleadings.
That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the
importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18
religiously, during the trial the judge will not have a hard time in determining what is the issue to be resolved.
And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the pre-trial order, you
will still have to look at the pleadings of both parties. The pre-trial order is a very important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is
claiming damages from the defendant. His allegations naturally would point out that all fault and negligence is
caused by the defendant. As usual, when the defendant files his answer, he is denying that. As a matter of
fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was also damaged, the
defendant will file a counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The
plaintiff’s lawyer asked the defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual
damages on defendant’s counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for
exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorney’s fees and
expenses for the litigation?”
So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do you agree
panyeros?” Yes, Okay. When the pre-trial order was issued, those issues were contained. Where’s the
defendant’s liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is liable to the defendant.
During the trial, the plaintiff presented his evidence to prove the defendant’s liability. The defendant’s lawyer
objected on the ground that there was no issue contained in the order on the liability of the defendant. The
only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial
order is not important.
(Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment of the
pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable.
Now, if I were the judge, I will really modify because it’s unfair no! You are the one suing and now you end up as
a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial! [gago!])
Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent
manifest injustice – is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does
not recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a pretrial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be amended
to conform with issue/s raised.
KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to another law which is also connected with
the study on civil procedure. This is the Barangay Conciliation Law. It is appropriate to discuss what the law is
all about because under Rule 18 on pre-trial, you will notice it has emphasized that the primary purpose of a
pre-trial is the possibility of amicable settlement. That is usually encouraged. No case may reach the trial
stage without passing through the Pre-trial Rule. We have to exhaust all avenues and settlement.
There is a law known as the BARANGAY CONCILIATION LAW which mandate that before an
action can be filed by an individual complainant against another individual defendant, both of
them are residing in the same city or municipality, there should be a prior attempt to conciliate in
the barangay level – under the rules, the barangay of the defendant. And if the action if filed
without observing that procedure, the action is dismissible.
Suppose a case will be filed in court, according to the SC, the plaintiff must allege in a complaint that before
filing the case he exerted or complied with the Baranagay Law. It is a condition precedent. Normally, after you
exhaust in the barangay level but is not successful, the Barangay Chairman will issue a certification t file an
action. That should be stated in the complaint.
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY (126 SCRA 217), the failure of a
complaint to allege compliance with the requirement of the barangay law is fatal. He must make an allegation
that before filing his complaint, he complied with the barangay law. Otherwise, his complaint will be ordered
dismissed.
If the action is filed without observing that procedure, the action is dismissible. But as clarified by the SC in
many cases, among them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA 289) the defect
is NOT JURISDICTIONAL. You do not say the court has no jurisdiction.
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The ground for dismissal is more on PREMATURITY OF THE ACTION. You can cite the new ground now as
“the condition precedent required by law has not been observed.” Actually, it
will also affect the cause of action- Based on decided cases, there must be an allegation in the complaint that
before filing a case, there has been an attempt to undergo a conciliation in the barangay level.
Now, this law used to be the Katarungang Pambarangay Law, PD 1508. However, it was superseded on
January 1, 1992 by RA 7160, otherwise known as the Local Government Code Of 1991 (LGC). The Barangay
Conciliation requirement is now embodied in RA 7160. The barangay requirement is found in Sections 399-422
and also Section 515. It is around 25 sections of the law.
To help you, the SC in 1993 issued Administrative Circular No. 14-93 where the SC tried to condense the
important requirements of the law – who are covered and who are not. It is addressed to all RTC and MTC
judges. Subject: Guidelines on the Katarungang Pambarangay conciliation Procedure to prevent circumvention
on the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important features. Under the law, you cannot file a case
against somebody without attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION LAW:
The law applies only when you are suing somebody who resides in the same city or municipality
where you reside. Or in the event of different municipalities, they are adjacent. So when two
towns are near each other, you are suing somebody there, the law will apply. Generally, when you
(from Davao City) sue somebody from General Santos City, the law is inapplicable because it is a different city.
The law will not apply if one of the parties in the dispute is a juridical person – i.e. corporation.
It only applies to suits between natural persons.
Under the law, it is where the barangay where the barangay where the defendant resides. Unless, the
dispute arose in a workplace or in school, the venue is the barangay where the workplace or the school is
located.
Q: If I’m from Sasa and you are from Toril, but we are residing in the same city, which barangay is the
proper venue?
A: Under the law, it is the barangay where the defendant resides, unless the dispute arose
in a workplace or in school.
If the dispute refers to REAL property, it is where the property is situated. If the dispute refers
to Real Property (e.g. land), and I’m from Matina, and you are from Sasa, but the case involves a
land in Toril, then the correct venue is the place where the land is situated – i.e. the barangay in
Toril.
When you say, both the parties reside in the same city or municipality, what do you mean by RESIDENCE?
The same interpretation as laid down by the SC in
GARCES vs. COURT OF APPEALS
162 SCRA 504
FACTS: Garces lives in Cavite but works in Malate. He rented an apartment in Malate and stays
there on weekends.
HELD: For purposes of the Barangay Law, Garces is a resident of Malate. The word ‘ RESIDES’
refers to actual or physical residence, not domicile.
In the case of
BEJER vs. COURT OF APPEALS
169 SCRA 566
FACTS: Andre lives in Laguna but has a house in Manila where his children live.
ISSUE: Is Andre a residence of Manila?
HELD: NO, because Andre is not a registered in the barangay as a voter. Physical presence
alone is not sufficient. So, the SC added another qualification, that residence is
determined by membership in the barangay. Therefore, even if you are in that area but you
are not a member of the barangay, you are not a resident thereof.
This is because “the primary purpose of the law is to provide the conciliation mechanism, as an
alternative to litigations in dispute settlement, to member of the corresponding barangays who are
actually residing therein. Residence alone, without membership, in said barangays would
not be an accurate and reliable criterion, considering that such residence may be actual
but be merely temporary, transient or categorized into other permutations as in the
case of a house guest or a sojourner on a visit of a day or two.”
“On the other hand, mere membership in a barangay, without actual residence
therein, should not suffice since absentee membership would not subserve the avowed
purpose of the law for lack of the common bond and sense of belonging generally
fostered in members of an identified aggroupment.”
Q: Suppose the defendant will not show up everytime he is called.
A: That is now a ground for the barangay captain to issue a certificate to file an action. The
defendant cannot complain later that there is non-compliance of the barangay law. The defendant
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cannot use his own default to profit it. That was the ruling in SAN MIGUEL VILLAGE SCHOOL vs. PUNDOGAR
(173 SCRA 704).
Take note that the barangay cannot decide. It can only convince the party to settle. A barangay
court has no power to make decisions. But if you agree to something and in case you failed to
comply with your agreement, that can be enforced by the barangay. But actually, the decision came
from you, and not from the barangay court.
There other interesting cases under the Barangay Law. In the 1989 case of
RAMOS vs . COURT OF APPEALS
174 SCRA 690
FACTS: This case originate in barangay Lanang, Davao City. The parties failed to agree before
the barangay captain. He tried to convince them to settle, but they refused to settle. With that, the
barangay captain issued a certificate to file an action. So the case was filed in the RTC. The
defendant questioned the procedure.
HELD: The procedure wrong. The case cannot be filed. Under the Barangay Law which is now
incorporated in 410-d of the Local Government Code, the correct procedure for this is, if the
barangay captain cannot effect settlement, he should throw the case to the Pangkat, the Lupon. If
the barangay captain cannot settle, the next step is the Lupong Tagapamayapa. So, you cannot
immediately issue a certification to file action
BUT the ruling if RAMOS seems to have been CHANGED already in the light of the new Local Government
Code. In the 1995 case of
DIU vs. COURT OF APPEALS
251 SCRA 472 [1995]
FACTS: What happened here is exactly similar to what happened to the case of RAMOS. When
the barangay captain could not effect a settlement, he issued certificate to file action. That was
questioned. It was not referred to the Lupon. Therefore, it was premature, citing Section 410-d of
the LGC.
HELD: The SC cited a new section in the LGC which is Section 412 which seems to give the
barangay captain the authority to issue a certificate without necessarily referring
anymore to the Lupon.
“While no pangkat was constituted, it is not denied that the parties met at the office of the
barangay chairman for possible settlement. The efforts of the barangay chairman, however, proved
futile as no agreement was reached. Although no pangkat was formed, we believe that there was
substantial compliance with the law. It is noteworthy that under Section 412 of the Local
Government Code, the confrontation before the lupon chairman OR the pangkat is sufficient
compliance with the pre-condition for filing the case in court.”
“This is true notwithstanding the mandate of Section 410(b) of the same law that the barangay
chairman shall constitute a pangkat if he fails in his mediation efforts. Section 410(b) should be
construed together with Section 412. On this score, it is significant that the barangay chairman or
punong barangay is himself the chairman of the lupon under the Local Government Code.”
Anyway, if be look to the pangkat under the LGC, the chairman of the lupon is also the barangay captain.
So, either one or the other will do. So, the case of DIU has effectively set aside the ruling in RAMOS.
CANDIDO vs. MACAPAGAL
221 SCRA 328 [1993]
FACTS: Here, plaintiff Eltor files a case against defendants Jenny, Gemma, and Jayce. Eltor and
Jenny reside in Davao City. So they (Eltor and Jenny) are covered by the law. But Gemma and Jayce
reside in General City. So there is no problem with Gemma and Jayce because there is no need to
effect conciliation. But how about Jenny? Should the case be dismissed against Jenny if there was no
prior barangay conciliation between Jenny and Eltor?
HELD: NO. The fact that Eltor and Jenny reside in the same municipality does not
justify compulsory conciliation WHERE the other defendants reside in different
municipalities or cities.
So, it would seem na pag nahuluan na ng iba, you are not also covered anymore. That seems to
be the implication. That seems to jive with another ruling of the SC on the issue of “members of
the same family” because under the law, if the plaintiff and defendant are members of the same
family, they cannot also file a case against each other without conciliation. But if there is a
stranger included, the requirement will not apply.
July 15, 1993
ADMINISTRATIVE CIRCULAR NO. 14-93
Subject : Guidelines on the Katarungang Pambarangay conciliation procedure to
prevent circumvention of the Revised Katarungang Pambarangay Law
(Sections 399-422, chapter VII, Title I, Book III, R.A. 7160, otherwise
known as the Local Government Code of 1991).
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts
187
The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known
as the Local Government Code of 1991, effective on January 1, 1992, and which
repealed P.D. 1508, introduced substantial changes not only in the authority granted
to the Lupon Tagapamayapa but also in the procedure to be observed in the
settlement of disputes within the authority of the Lupon. cd i
In order that the laudable purpose of the law may not subverted and its
effectiveness undermined by indiscriminate, improper and/or premature issuance of
certifications to file actions in court by the Lupon or Pangkat Secretaries, attested by
the Lupon/Pangkat Chairmen, respectively, the following guidelines are hereby
issued for the information of trial court judges in cases brought before them coming
from the Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the Revised
Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by
Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse
thereto is a pre-condition before filing a complaint in court or any government
offices, EXCEPT in the following disputes:
1.
2.
3.
4.
Where one party is the government, or any subdivision or instrumentality
thereof;
Where one party is a public officer or employee, and the dispute relates
to the performance of his official functions;
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;
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);
NOTE: Only natural persons can undergo barangay conciliation.
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 over five thousand pesos
(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:
NOTE: “Urgently.” A good example in civil action is where the action is coupled with
a provisional remedy such as preliminary injunction, attachment, replevin or support.
Or, actions which may be barred by the statute of limitations.
a.) Criminal cases where accused is under police custody or detention
(See 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 his
liberty or one 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; and
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
(CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee
relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code,
as amended, which grants original and exclusive jurisdiction over
conciliation and mediation of disputes, grievances or problems to certain
offices of the Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation
there is in the Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed
directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation,
as implemented by the Katarungang Pambarangay Rules and Regulations
promulgated by the Secretary of Justice, the certification for filing a complaint in
court or any government office shall be issued by Barangay authorities only upon
compliance with the following requirements: aisa dc
1.)
Issued by the Lupon Secretary and attested by the Lupon Chairman
(Punong Barangay), certifying that a confrontation of the parties has
taken place and that a conciliation or settlement has been reached, but
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2.)
the same has been subsequently repudiated (Sec. 412, Revised
Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang
Pambarangay Rules);
Issued by the Pangkat Secretary and attested by the Pangkat Chairman,
certifying that:
a. a
confrontation
of
the
parties
took
place
but
no
conciliation/settlement has been reached (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat
through no fault of the complainant (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules).
3.)
4.)
Issued by the Punong Barangay, as requested by the proper party on the
ground of failure of settlement where the dispute involves members of
the same indigenous cultural community, which shall be settled in
accordance with the customs and traditions of that particular cultural
community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their
dispute to the indigenous system of amicable settlement, and there has
been no settlement as certified by the datu or tribal leader or elder to
the Punong Barangay of the place of settlement (Secs. 1, 4, & 5, Rule IX,
Katarungang Pambarangay Rules); and
If mediation or conciliation efforts before the Punong Barangay proved
unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b],
Revised Rule Katarungang Pambarangay Lay; Sec. 1, c, (1), Rule III,
Katarungang Pambarangay Rules), or where the respondent fails to
appear at the mediation proceeding before the Punong Barangay (3rd
par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong
Barangay shall not cause the issuance of this stage of a certification to
file action, because it is now mandatory for him to constitute the Pangkat
before whom mediation, conciliation, or arbitration proceedings shall be
held.
III. All complaints and/or informations filed or raffled to your sala/branch of the
Regional Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be
carefully read and scrutinized to determine if there has been compliance with prior
Barangay conciliation procedure under the Revised Katarungang Pambarangay Law
and its Implementing Rules and Regulations, as a pre-condition to judicial action,
particularly whether the certification to file action attached to the records of the
case comply with the requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior Barangay conciliation
which is a pre-condition for formal adjudication (Sec. 412[a] of the Revised
Katarungang Pambarangay Law)
1.)
2.)
may be dismissed upon motion of defendant/s, not for lack of jurisdiction of
the court but for failure to state a cause of action or prematurity (Royales
vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 289), or
the court may suspend proceedings upon petition of any party under Sec. 1,
Rule 21 of the Rules of Court; and refer the case motu propio to the
appropriate Barangay authority, applying by analogy Sec. 408[g], 2nd par.,
of the Revised Katarungang Pambarangay Law which reads as follows:
"The Court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may at any time
before trial, motu proprio refer the case to the Lupon concerned for
amicable settlement.
Strict observance of these guidelines is enjoined. This Administrative Circular
shall be effective immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA
Chief Justice
189
Rule 19
INTERVENTION
This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars.
And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on
Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34.
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is
permitted by the court to make himself a party to the case. (33 C.J.S. 447)
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note in favor
of Leo.
Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party Rayda.
Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself?
A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda.
Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to
be able to join the case?
A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come
from her.
So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party is
included in a case, but with the difference that in a third-party complaint, it is the party who brought you in.
While in intervention, the initiative comes from the third person and he is known as the intervenor. And the
process of entering is called intervention. And take note that a person cannot simply intervene for the sake of
intervening. There must be a legal ground for intervention which can be found in Section 1:
Section 1. Who may intervene. A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or is
so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor's rights may be fully protected in
a separate proceeding. (2[a], [b]a, R12)
Q: What are the grounds for intervention?
A: The following are the GROUNDS for intervention:
1.) The intervenor has a legal interest on the matter under litigation;
2.) The intervenor has a legal interest in the success of either of the parties;
3.) The intervenor has a legal interest against both; or
4.) The Intervenor 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.
First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER LITIGATION;
EXAMPLE #1: Tarzan died survived by his children. Chita is appointed as administrator of his estate. Chita
filed a case to recover a piece of land which he believes belongs to the deceased. The children would like to
intervene.
Q: Do children have the legal personality or the right to intervene involving the estate of Tarzan?
A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be
richer. The property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)
EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victor’s children (Mary,
Rose and Ador) would like to intervene contending that when their father (Victor) would die in the future, their
inheritance is affected.
Q: Can the children of Victor intervene?
A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant – there is no
assurance that your father will die ahead of you. The interest referred to by the law is an interest that is
direct immediate, actual existing interest as distinguished from expectant, inchoate or contingent
interest. (Garcia vs. David, 67 Phil. 279)
How do you distinguish the second example from the first case? In the first case, the father is dead and you
inherit the property. Technically, the property belongs to you. So the right of the heirs over the property litigated
by the administrator is not expectant or inchoate.
190
Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS
OF EITHER OF THE PARTIES;
So you are interested in the plaintiff winning or the defendant winning.
EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the principal
debtor without impleading the principal debtor. The principal debtor may intervene if he would like to join forces
with the surety.
Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES;
I am not interested in the victory of either the plaintiff or the defendant. I am interested with my victory
against both. So it becomes a three-cornered fight.
EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the property and
then here I come – I will intervene. I am the one, not both of you, who has the right over the property. Wala
kayong lahat!!! Mga ungas!! So bakbakan na iyon. I have a better right against both of you.
Fourth Ground: THE INTERVENOR 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.
EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property attached
preliminarily happens to be my property. So I can move to intervene because I am adversely affected by the
distribution.
Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that is not the
only remedy. The law allows the third person to file an intervention in the main action.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?
A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under Section 1, the
court may or may not grant the motion - 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 maybe fully protected in a separate proceeding.
For example, the case between the original parties is about to end, the trial of the case is about to end and
at that point, you will have to intervene. If you intervene, we will start all over again. So, it will be dilatory. But
even if you will not be allowed to intervene, the court may say that you can file your case in the future. You can
file a separate action later against the parties.
BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a matter of
right. What are these exceptions?
A: The following:
1.) When the intervenor turns out to be an indispensable party; and
2.) Class suit (Section 12, Rule 3)
Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is impracticable to
join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned may
sue or defend for the benefit of all. Any party in interest shall have the right to
intervene to protect his individual interest. (12a)
Did you notice that last sentence? “Any party in interest shall have the right to intervene.” So, in other
words, in a class suit and you are already included, law says, you have the right to intervene in so far as your
individual interest is concerned. So, that would be another instance where intervention seems to be a matter of
right rather than a matter of discretion.
WHEN AND HOW TO FILE
Sec. 2. Time to intervene. The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall
be attached to the motion and served on the original parties.
Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-inintervention if he asserts a claim against either or all of the original parties, or an
answer-in-intervention if he unites with the defending party in resisting a claim
against the latter. (2[c]a, R12)
Q: When do you move to intervene?
A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot intervene
when there is already a decision. Tapos na ang kaso. The trial is already terminated. So the earlier, the better.
And when you file a motion to intervene, the pleading-in-intervention that you want to file should already be
included. Now, under the old procedure, first, you file a motion to intervene. After filing your motion and your
191
motion is granted, then you file your pleading in intervention. So, motion first before pleading. That was the old
rule.
NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and served on
the original parties. That is also in consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading or motion
shall be accompanied by the pleading or motion sought to be admitted. (n)
So, in other words, when you file a motion for leave, the pleading must already be included in your motion.
An example is a motion to intervene where it must already be accompanied by the pleading-in-intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in Section 3.
intervention or an answer-in-intervention. So it DEPENDS:
It’s either a complaint-in-
If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a
COMPLAINT-IN-INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an ANSWERIN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Let’s try to go back to the basic. What are the
types of pleadings allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-inintervention.
xxxxx
Did you notice that “complaint-in-intervention”? So, we are wondering, ano ba itong complaint-inintervention? Actually, that is the pleading referred to now in Rule 19.
Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in
-intervention shall be filed within fifteen (15) days from notice of the order admitting
the same, unless a different period is fixed by the court. (2[d]a, R12)
In other words, just like any other complaint, it should be answered within 15 days. A complaint-inintervention must be answered within fifteen (15) days from notice of the order admitting the same, unless a
different period is fixed by the court. So you have 15 days.
Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer?
A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where the plaintiff files an amended
complaint as a matter of right, the defendant shall answer the same within fifteen
(l5) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended
complaint within ten (10) days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the amended complaint if no new
answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention. (3a)
Q: What is the period to answer an amended complaint-in-intervention?
A: It is either 10 or 15 days just like answering an ordinary amended complaint.
DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION
There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the case
was dismissed either by the court or the plaintiff withdrew it. Can the intervention proceed independently? Can
it proceed when there is no more main action? In the case of
BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS
227 SCRA 161 [1993]
HELD: An intervention is merely collateral or accessory or ancillary to the principal action and
not an independent proceeding. It is an interlocutory proceeding dependent on or subsidiary to the
case between the original parties. Where the main action ceases to exist, there is no pending
proceeding wherein the intervention maybe based. If the main action dies, the intervention dies
also.
BUT there is another answer given by the SC in the case of:
METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA
189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is withdrawn or dismissed, it would
be unfair to dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal
of the main action.
“The simple fact that the trial court properly dismissed plaintiffs 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
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by the plaintiff. Where a complaint in intervention was filed before plaintiff’s action had been
expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground that no
action was pending.”
So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the benefit
of the intervention. So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on the
ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining the
surety. Then creditor withdrew the complaint. What will happen to the intervention? The intervention cannot go
on because the intervention is actually to assist the surety. So, if the complaint against the surety is dismissed,
wala ng utang. There is no more basis to assist the surety. (BIG COUNTRY ruling)
EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to posses a
piece of land. And then Tommy will intervene also claiming that he has the superior right to possess. So the
three of them will fight. And then later, Pches will withdraw the case. What will happen to Tommy’s
intervention? The dismissal of the main action does not mean that Tommy cannot prove his right against John.
The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I will continue. I will claim that
the land is mine. (METROBANK ruling)
Iyaaaan! It depends on what kind of intervention you are talking about.
Now, there an instance when intervention may be confused with another procedure under Rule 3, Section
19 on Transfer of Interest. For example: When a property under litigation is sold and there is a notice of lis
pendens, the person who buys is called the TRANSFEREE PENDENTE LITE. In the case of
SANTIAGO LAND CORP. vs. COURT OF APPEALS
January 28, 1997
FACTS: Rose brought an action against a bank to enforce an alleged right to redeem certain real
properties foreclosed by the bank. With notice of the pending civil action, Leo purchased from the
bank one of the properties subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE
LITE. And later, Leo filed a motion to intervene. Rose opposed Leo’s motion for intervention.
ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene?
HELD: The SC here made a distinction between the rights of a transferee pendente lite (Rule 3,
Section 19) and an intervenor (Rule 19).
“The purpose of Rule 19 on intervention is to enable a stranger to an action to
become a party to protect his interest and the court incidentally to settle all conflicting
claims. On the other hand, the purpose of Rule 3, Section 19 is to provide for the
substitution of the transferee pendente lite precisely because he is not a stranger but a
successor-in-interest of the transferor, who is a party to the action. As such, a
transferee’s title to the property is subject to the incidents and results of the pending
litigation and is in no better position than the vendor in whose shoes he now stands.”
“As such, he stands exactly in the shoes of his predecessor in interest, the original
defendant, and is bound by the proceedings had in the case before the property was
transferred to him. He is a proper, but not an indispensable, party as he would, in any
event, have been bound by the judgment against his predecessor.”
“How then can it legally be possible for a transferee pendente lite to still intervene when, for all
intents and purposes, the law already considers him joined or substituted in the pending action,
commencing at the exact moment when the transfer of interest is perfected between the original
party-transferor and the transferee pendente lite? And this even if the transferee is not formally
joined as a party in the action. Because the transferee pendente lite simply takes the place of the
transferor, he is barred from presenting a new or different claim.”
“On the other hand, one who intervenes has a choice not to intervene and thus not to be
concluded by any judgment that may be rendered between the original parties to the action.”
Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need for you to intervene
because you are already a (necessary) party. On the other hand, an INTERVENOR can decide
whether or not he wants to join to be bound by the judgment of the main case. So that is the ruling in
SANTIAGO LAND.
There is another case on the issue again of intervention. The case of
FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN
253 SCRA 30 [February 1, 1996]
FACTS: There was a motion to intervene and the trial court denied it.
ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for
intervention?
HELD: “As provided under Rule 19, Section 1, intervention shall be allowed in the exercise of
discretion by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But
where there is gross abuse of discretion, manifest injustice or palpable excess of authority
equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain,
speedy and adequate remedy, the writ shall issue.”
Rule 20
CALENDAR OF CASES
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Section 1. Calendar of cases. The clerk of court, under the direct supervision of
the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials
were adjourned or postponed, and those with motions to set for hearing. Preference
shall be given to habeas corpus cases, election cases, special civil actions, and those
so required by law. (1[a], R22)
The clerk of court has a calendar of cases – cases for pre-trial, trial cases, which were postponed. When will
be the continuation of the trial? May scheduling yan eh. Of course, the law says, preference shall be given to
certain type of cases like habeas corpus. It is very important because that involves the freedom of an
individual.
Sec. 2. Assignment of cases. The assignment of cases to the different branches of a
court shall be done exclusively by raffle. The assignment shall be done in open
session of which adequate notice shall be given so as to afford interested parties the
opportunity to be present. (7a, R22)
For example, in Davao City, there are more than 10 branches. Now, when you file a case, how will we
determine whether the case will be assigned to Judge Malcampo or Judge Quitain or Judge Torres? Raffle ‘yan.
Niraraffle ‘yan. I remember the ordinary raffling day in Davao City is every Tuesday. They raffle the cases. All
representatives of the different branches are there and then they have a system of raffling. Which case will go
to you? Para hindi ka makapili. So, that is how cases are assigned.
So, pag-raffle ng kaso, there should be adequate notice to the parties. This is one section where the clerk of
court had a hard time applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will immediately raffle it and then i-assign na sa
branch. The branch clerk of court will now issue the summons. Meaning, by the time it reaches the defendant,
naka-assign na. Suppose the defendant will object, “When that raffling was done, I was not notified. I will
question the raffle because it would seem that the requirement is that the plaintiff and the defendant should be
notified of the raffling.” Yaan!
Rule 21
SUBPOENA
Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a
person requiring him to attend and to testify at the hearing or the trial of an action,
or at any investigation conducted by competent authority, or for the taking of his
deposition. It may also require him to bring with him any books, documents, or other
things under his control, in which case it is called a subpoena duces tecum. (1a, R23)
Rule 21 applies to both civil and criminal cases.
Q: What are the types of subpoena under the law?
A: The following are the types of subpoena:
1.) Subpoena Ad Testificandum; and
2.) Subpoena Duces Tecum
Now, the first one is commonly known as subpoena for short. So, when you say that refers to the first one.
Q: Define Subpoena Ad Testificandum.
A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and to testify at
the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of
his deposition. So you are required to appear there and testify in court.
Q: Define Subpoena Duces Tecum.
A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring with him any
books, documents or other things under his control. So, in other words we are more interested in his
documents, which are in his custody. Whereas in ad testificandum, we are more interested in his oral testimony.
Now, take note that a subpoena is a process which requires a witness to testify not only during the hearing
or the trial of his case but also any investigation conducted by “competent authority” like quasi-judicial bodies
such as the Labor Arbiter or the Senate Blue Ribbon Committee. Now, under Section 1, you may wonder what
do you mean by subpoena “for the taking of his deposition”? That because that will clearer when we reach Rule
23. So we will just reserve talking deposition when we reach Rule 23.
Sec. 2. By whom issued. The subpoena may be issued by:
a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations
conducted by said officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or
investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall
examine and study carefully such application to determine whether the same is
made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment and who
is confined in any penal institution shall be brought outside the said penal institution
for appearance or attendance in any court unless authorized by the Supreme Court.
(2a, R23)
Q: Who are authorized to issue subpoena?
A: The following:
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1.
The court before whom the witness is required to attend – the most common is the court where the
court is pending;
2.
The place where the deposition is to be taken – we will discuss that when we reach Rule 23;
3.
The officer or body authorized by law to do so in connection with investigations conducted by said
officer or body – Now, even administrative bodies or quasi-judicial officers are authorized to issue
subpoena like the Labor Arbiter in connection with investigation conducted by said officer or body;
4.
Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within
the Philippines – So, practically any justice can issue a subpoena to attend a particular case although it
is not before the SC. They are empowered to issue a subpoena.
Q: Can you subpoena a PRISONER to appear in court?
A: YES, but the law says that the judge should be very careful to find out whether it is issued for a valid
purpose because there is a risk. If a prisoner is going to be brought out in jail because he has to testify in a
case, that might be an occasion for him to escape. So, the court should be very careful about that. The court
should have to find out whether it is necessary.
And take note, “No person sentenced to death, reclusion perpetua, or life imprisonment and who is confined
in a penal institution shall be brought outside the said penal institution for appearance or attendance in any
court unless authorized by the Supreme Court.” This is something new.
I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva Ecija who
was convicted of gun running. He was sentenced in Muntinlupa then one day, because of subpoena to testify in
his hometown, he was escorted in his hometown to attend the fiesta and then I think he just used that as an
excuse to attend the fiesta. And that was attacked by the media – why was he allowed to leave the national
penitentiary when he is sentenced to reclusion perpetua? So, this paragraph now appears. You cannot remove
him from any National Penal institution without authority of the SC.
Sec. 3. Form and contents. A subpoena shall state the name of the court and the
title of the action or investigation, shall be directed to the person whose attendance
is required, and in the case of a subpoena duces tecum, it shall also contain a
reasonable description of the books, documents or things demanded which must
appear to the court prima facie relevant. (3a, R23)
Now, actually that is simple. You are required to testify on this date or time or you are required to bring
with you the following documents, which was described in the subpoena duces tecum.
Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to quash a
subpoena? Section 4:
Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the time specified therein if it
is
1. unreasonable and oppressive, or
2. the relevancy of the books, documents or things does not appear, or
3. if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the
production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness
is not bound thereby.
In either case, the subpoena may be quashed on the ground that the witness fees
and kilometrage allowed by these Rules were not tendered when the subpoena was
served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
Q: What are the grounds for quashing a subpoena duces tecum?
A: The following are the grounds:
1.) If the subpoena duces tecum is unreasonable and oppressive;
2.) The relevancy of the books, things or documents does not appear;
3.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for the
production thereof.
First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE
Well, the best example is if it violates Section 3 – it does not contain a reasonable description of the book,
documents or things demanded.
EXAMPLE: I will subpoena a business man to a business company, “Mr. Manager you are required to bring to
court all your ledgers, all your receipts, and all your documents from 1990 to the present.” My golly! That
would involve how many truck loads. Meaning, it would involve bringing to court thousand of documents. So, it
becomes unreasonable and oppressive. The subpoena duces tecum should be more specific.
Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR
Meaning, there appears to be no connection between the documents which are being sought, and the
issues in the case. Example, in a collection case, you were required to bring your birth certificate, marriage
contract, etc. My golly! Anong pakialam ng mga niyan sa collection case?
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS
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TO ADVANCE THE REASONABLE PRODUCTION THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, “Present to court the ledger of the return check of somebody.”
And this check was issued and send to you four years ago. Do you know the inconvenience when a company is
asked to bring to court documents especially ‘yung matagal na? Practically, the company has to assign the
employee out of his usual job. He is pulled out from his usual job to look for these in the archives. Isa-isahin
niya iyan. Maybe it will take him two or three days to locate and then he will be required to go to court where
you will miss your work because you will be in court and yet the person who demand the subpoena duces
tecum has never been bothered to pay service fee for that. Meaning, dapat magbayad siya reasonable cost.
Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma bayad
ka na ng service fee. How much more in the private sector, where you are requiring a company to look for a
document? He is the one to look and then somebody will go to court. He will not be reporting for job and yet
you have not even offered anything to the company. We experienced this many times subpoena duces tecum,
and then the manager of the bank will say, “do we have to comply with these?” Well, you do not want to
comply. Puwede man.
When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount for the
trouble in looking for these documents and in going to court? “Wala.” Okay, we will move to quash. In other
words, sometimes companies and banks just waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan.
But it is a ground for quashing a subpoena.
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?
A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the
place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is
more than 100 kms. But suppose you are willing to pay for his transportation? Never mind, even if
he is willing to pay the transportation. Pag ayaw niya, wala kang magagawa because it is more
than 100 kms.
In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You must also
tender the witness fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think that’s Rule
141, ‘yun bang pamasahe. There is a computation there. How much you have to pay the witness for his
transportation and witness fees. That is different from the reasonable cost and reproduction in the first
paragraph. So, these are the grounds for questioning a subpoena.
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without an order of the
court. (5a, R23)
Now, let’s us skip Section 5 for the meantime because that is deposition.
Sec. 6. Service. Service of a subpoena shall be made in the same manner as
personal or substituted service of summons. The original shall be exhibited and a
copy thereof delivered to the person on whom it is served, tendering to him the fees
for one day’s attendance and the kilometrage allowed by these Rules, except that,
when a subpoena is issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made. The service must be made so
as to allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered. (6a, R23)
The first sentence says, “Service of the subpoena shall be made in the same manner as personal or
substituted service of summons.” That is a new provision. So, the mode of service of summons, personal or
substituted is also the manner of serving subpoena. So there is now a substituted service of summons. You can
leave it to the wife.
Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no such
thing as substituted service of subpoena because in most cases, when you subpoena somebody, you go to the
house, the witness is not there but the wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo ito.”
That is substituted service of subpoena. You must serve it personally to the witness. There is no such thing as
substituted service of subpoena Under the prior rule.
But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same manner as
personal or substituted service of summons.” Alright.
And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You must
serve the subpoena with a reasonable time to me to allow him to travel. It’s very unbecoming that the witness
be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has other commitments, bigyan
mo siya ng time. And of course, as we discussed earlier, the reasonable cost of producing the books,
documents or things demanded shall also be rendered.
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Sec. 7. Personal appearance in court. A person present in court before a judicial
officer may be required to testify as if he were in attendance upon a subpoena issued
by such court or officer. (10, R23)
GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena.
EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify as if he
is under subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And then the
lawyer will say, “Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was not under
subpoena.” NO, You can be compelled because you are present in court. Any person present inside the
courtroom can be compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag kang
magtingin-tingin doon. It happened several times. There was an instance I wanted to call a witness several
times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya. And then I’ll talk to him.
“O punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick him into going into courtroom and then
once inside, my first witness is that guy. Wala kang magawa. Because any person present in court can be
compelled to testify because if I will have him subpoena, he will be forewarn. So I do not want to forewarn him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not show up.
What are the consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or
judge issuing the subpoena, upon proof of the service thereof and of the failure of
the witness, may issue a warrant to the sheriff of the province, or his deputy, to
arrest the witness and bring him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the
subpoena was willful and without just excuse. (11, R23)
Sec. 9. Contempt. Failure by any person without adequate cause to obey a
subpoena served upon him shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a court, the disobedience
thereto shall be punished in accordance with the applicable law or Rule. (12a, R23)
Q: What are the consequences if the witness refuses to appear after he was subpoenaed>
A: The following:
1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s what
you call a warrant to arrest a recalcitrant witness. You move to arrest the witness para puwersahin
mo ba;
2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply
to a witness who resides more than one hundred (100) kilometers from his residence
to the place where he is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending was obtained. (9a,
R23)
Q: When is a witness not bound by a subpoena?
A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is 50 kms.
lang. Now, the new rule is double na – more than 100kms. So pag sobra ng 100 kms, you cannot compel the
witness anymore to appear. Alright, clear so far?
Although, this 100-km distance does not apply if it is a criminal case where the accused would like to seek
the compulsory process issued to secure the attendance of witnesses in his behalf because that is a superior
right.
That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]), reiterated in
GENORGA vs. QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies only to civil cases,
but not to criminal cases, especially if the person to be subpoenaed is a defense witness because
of the constitutional right of the accused which is a right which cannot be curtailed by the Rules of
Court.
SUMMONS vs. SUBPOENA
Now, I’ve noticed among laymen that there is a confusion between a summons and a subpoena. I’ve tried
noticing that for years. The client will say, “Nakatanggap ako ng subpoena.” Pagtingin mo summon man under
Rule 14. Sometimes, he will say, “Gi-summon ako ng court.” Iyon pala, subpoena. In other words among
laymen, they think summon and subpoena are the same but actually we know that they are not.
Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that there is
no author has ever bothered to explain at least to outline an answer in his book. I’ve gone to many books in
remedial law, I still have to see an author who says in his commentaries, summons and subpoena are two
different things and these are the distinctions?
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Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in the
book. If you know an idea, a legal concept – summons, alam naman ninyo ‘yan; subpoena – actually you can
answer. You do not have to rely to any author in answering the question.
As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of any
author. Why? Because how can I memorized all of these distinctions in all subject? Impossible ‘no? It’s
impossible for me to memorize everything that the author said about distinctions and I don’t have to rely on
any book. That’s the best. Now, yong mga author, they only try to make your job easier by outlining the
distinctions between this and that. But suppose there will be a question where you are asked to differentiate
this from that and you have not read that in any book, mag-panic ka? Huwag kang mag-panic. In other words,
once you know the concept, you can easily give an answer.
Alright, there should be no confusion between a subpoena and a summons. There are 2 different processes,
although laymen would tend to equate one with the other.
Q: Distinguish SUBPOENA from SUMMONS.
A: The following are the distinctions:
1.) SUBPOENA is directed to a witness; whereas
SUMMONS is directed to a defendant in a civil case;
2.) In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas
In SUMMONS, the defendant is informed that a complaint is filed against him and he must file a
responsive pleading within the period otherwise, judgment can be rendered;
3.) In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled by
the issuance of a warrant for his arrest; whereas
In SUMMONS, a judgment in default will be rendered against the defendant who fails to comply.
4.) SUBPOENA applicable to both criminal and civil case; whereas
SUMMONS applies only to civil cases.
5.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas
In SUMMONS, there is no distance limitation.
Rule 22
COMPUTATION OF TIME
Section 1. How to compute time. In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins to run is to
be excluded and the date of performance included. If the last day of the period, as
thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next working day. (n)
This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE LAST DAY” rule. That is how it has
always been done even before this new rule. However, it was not expressed, there is nothing in the previous
rules mentioning that rule but that was really the rule followed.
So, if you received the summons today, for example and you have 15 days to answer, you start counting
1(one) tomorrow, not today because the day of the act or event from which the designated period of time
begins to run is to be excluded.
Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday?
A: Then, the time shall not run until the next working day. So there will be an automatic extension to
Monday or the next working day.
So at least, the new rules now embody the rule of computation of time.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the
running of the period, the allowable period after such interruption shall start to run
on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the
computation of the period. (n)
EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15 days to file
his answer. An example of an act in between which effectively interrupts the running of the 15-day period is
when the defendant files a motion to dismiss instead of filing an answer, or a motion for a bill of particulars. In
which case, the running of the 15-day period stops. And since it is stopped, you cannot declare the defendant
in default.
Q: Now, when will it start to run again?
A: It will start to run again when the defendant receives a court order denying his motion to dismiss.
For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after several
weeks, the court denied the motion to dismiss and he received the order of denial.
Q: So how many days more to go?
A: Meron pa siyang eight (9) days to go. But the minimum guaranteed is five(5) days under Rule 12 and 16.
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Now, what is the meaning of the last sentence “The day of the act that cause the interruption shall be
excluded in the computation of the period.” Let’s try to illustrate that:
FACTS:
January 31 – defendant is served with summons
February 8 – defendant files a motion to dismiss
February 15 – defendant receives order denying motion to dismiss
Q: What is the deadline for defendant to file his answer?
A: The 15-day period started to run on January 31. From January 31 to February 8, he consumed 8 days.
From February 8 to 15, not counted because interrupted man by motion to dismiss. Then, on February 15, he
received the order denying his motion to dismiss.
So the remaining balance of the 15-day period starts to run again. And 15 minus 8 is equal to 7. Therefore,
February 15 + 7 = February 22. That is how you arrive at your (WRONG) answer.
Now, I’m sure if you ask majority of lawyers and judges with that kind of problem, they will give the same
answer. But the answer is WRONG. Why?
Q: How many days did he consume from January 31 to February 8?
A: Hindi naman 8 days eh. 7 days lang because the filing of the motion to dismiss has interrupted.
So when you file the motion to dismiss on February 8,
counted. So you consumed 7 days only. Yaaaannnn…….
interrupted na. So February 8 is not
Therefore, if he consumed 7 days, he has 8 days pa from February 15 to file. So the deadline is February
23. Yaaaannnn! Because the law says: “The day of the act that caused the interruption shall be excluded in the
computation of the period.” The act that caused the interruption is the filing of the motion to dismiss and it was
filed on February 8. So, February 8 is already excluded in the computation of the period.
Take note of that, that is a very important point because it may mean the answer is filed on time or out of
time. Kahit sa appeal, applicable din ito. That’s why that provision may sound very innocent but it is a very
important provision.
Rule 23
DEPOSITIONS PENDING ACTION
We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit
even some lawyers and judges have a difficult time in comprehending Modes of Discovery.
A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards
on the table. You do not keep your opponent searching in the dark and that principle is manifested in so many
rules.
Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the
complaint but also the facts that is denied. It is not fair to state that my version is false, without stating your
version. And if you do not make specific denial, there is a general denial, an implied admission.
You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to
confuse him. He has the right to clarify the allegation by motion for bill of particulars.
There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are
generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the
one who will be surprised because the courts will not allow you. There is no such thing as surprise defense
because under Rule 9, defenses not raised are deemed waived. These provisions of the rules indicate the
principle: LAY YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or not because I’m obliged to state my cause of
action or defense but I’m not obliged to state the facts supporting that defense because the rules even say,
evidentiary matters should not be alleged in the pleading but is only proved in the trial.
So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to
prove but you do not know how I will prove it – the kind of evidence I will present – you know the factum
probandum but you do but you do not know the factum probans. You do not know what documents I will present
in court because I am not obliged to plead document which is not actionable one. You do not know who are my
witnesses, you do not know they will testify.
A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an
element of surprise – you do not know my evidence until the trial or pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing then?
A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so
popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers because if
they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not only
allowed but their use is encouraged.
BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?
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A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but
it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are
intended to compel the other party to reveal his evidence and evidentiary facts.
There are actually five (5) Modes of Discovery: DWRPP
1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action or pending appeal (Rule
24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)
These are devises in the Rules of Court which are intended to compel the other party to reveal his
evidences before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill
of Particulars is only intended to clarify vague statements of ultimate facts but evidentiary facts cannot be
compelled so the remedy are Modes of Discovery.
This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to
use the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to
reveal their testimony under oath through Modes of Discovery. So that during the trial, I would not be surprised
anymore because meron na akong copy of your testimony which is also under oath. And if you have some
documents to present which you are hiding because they are not actionable, puwede man kitang pilitin ba, by
applying Rule 27. So with this, there are no more surprises.
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two (2) types – deposition pending action
(Rule 23) and depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new because
that is Rule 134 (Perpetuation of Testimony).
But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about.
EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B will
testify, how will they testify, that I do not know. But I want to know exactly what they will say during the trial,
including you.
Q: How do I apply Rule 23?
A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear
before someone whom we call a Deposition Officer – the judge, or any judge, or even a notary public - who can
administer oath. And then before him, I will be asking now questions and you have to answer under oath. Your
answers will then be recorded including that of your witnesses.
Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony that
you can give me because I already heard you in advance. You cannot contradict your answer. This is what you
call deposition taking.
Now, if I can do that to you, you can also do that to me. The defendant can also use that against the
plaintiff.
Q: How do you define deposition?
A: DEPOSITION is the written testimony of a witness given in the course of a judicial proceeding, in advance
of the trial or hearing, upon oral examination or in response to written interrogatories, and where an
opportunity is given for cross-examination. (16 Am. Jur. 699)
When I take the deposition of somebody, my opponent has the right to cross-examine the same witness. So
practically, it’s a dress rehearsal for the trial when I ask questions, my opponent can ask questions also. The
questioning of the witnesses is done the way it is done during the trial. The witness of the opponent has to
undergo the same procedure in the rules of evidence. That is Section 3:
Sec. 3. Examination and cross-examination. Examination and cross-examination of
deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132.
(3a, R24)
Q: Distinguish a deposition from an affidavit.
A: Affidavit is also a sworn statement of a witness but the statement is taken ex-parte (no
cross-examination). But in deposition there is cross-examination, there is a confrontation as if he is already
testifying in court.
Section 1. Depositions pending action, when may be taken. By leave of court after
jurisdiction has been obtained over any defendant or over property which is the
subject of the action, or without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken, at the instance of
any party, by deposition upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a subpoena as provided in
Rule 21. Depositions shall be taken only in accordance with these Rules. The
deposition of a person confined in prison may be taken only by leave of court on such
terms as the court prescribes. (1a, R24)
Deposition-taking under Section 1 presupposes that there is a pending civil case kaya nga, the title is
depositions pending action. There is an existing civil case and I would like to take the deposition of certain
people.
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Q: When there is a pending action, is it necessary that leave of court or permission should be sought for
deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no answer:
1.) If the defendant has already filed an answer and therefore jurisdiction over the person
of the defendant has been obtained, leave of court is not required. All you have to do is
send the questions to the other party;
2.) But if there is no answer, where the court has not yet acquired jurisdiction over the
person of the defendant, it requires a motion.
Another instance where leave of court is required under Section 1 is when what is to be taken is a
deposition of a person confined in prison.
Q: Whose deposition can you take?
A: The law says, you can take the testimony of any person whether a party or not at the instance
of any party.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr. A’s
deposition. I can also take the deposition of my own witnesses, even my own deposition. At least, before I die,
nakuha na yung testimony ko. So I can take the deposition of anybody in the world. That’s why the law says,
“the testimony of any person whether a party or not may be taken at the instance of any party.” And of course,
Mr. A can also do what I was allowed to do.
Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him witness.
Q: What are the modes of deposition taking?
A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is just like how you question a witness in
court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his questions
and answer. Deposition upon written interrogatories should not be confused with Rule 25 because the former is
governed by Rule 23. Although they use the same words.
Now, as we shall see, there must be a deposition officer and under the law, even a notary public is
qualified to act as deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is
located
along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this
questioning for the purpose of deposition. Section 1 says, “the attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 21.”
Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process
directed to a person requiring him to attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition. It may also require him to bring with him any books,
documents, or other things under his control, in which case it is called a subpoena
duces tecum. (1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in Davao
to help you and you are even willing to shoulder her transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and
testify even if the distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and
take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under
Rule 21, Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:
xxxxx
b) the court of the place where the deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without an order of the
court. (5a, R23)
In other words, I will send the notice to my opponent, “I am going to take the deposition of my witness in
Cebu.” And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a
subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC has to
issue a subpoena even if the case is not pending in that (Cebu) court because this is only deposition. Kaya nga
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under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place where the deposition is to be
taken.
There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao.
Then he applied for a subpoena to require the deponent to appear before a notary public here. At least, tama
siya doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case is pending and the
judge there, maybe he did not read Rule 21, issued a subpoena addressed to the person in Davao to appear
before the notary public in Davao and the witness did not appear. So the lawyer realized na mali siya. So he
had to do it all over again in Davao, not in Manila. The subpoena has no more effect beyond 100 kilometers. It
should be filed not where the case is pending but at the court of the place where the deposition is to be taken.
In other words, the error was corrected, but can you imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before the trial. But in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES
225 SCRA 622 [1993]
ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can
you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the
pre-trial?
HELD: “Depositions may be taken at any time after the institution of any action, whenever
necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial
or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law
authorizes the taking of depositions of witnesses before or after an appeal is taken from the
judgment of a Regional Trial Court to perpetuate their testimony for use in the event of further
proceedings in the said court and EVEN during the process of execution of a final and executory
judgment.”
Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated.
This is called with another name in Rule 39 on execution, satisfaction or effects of judgments. ( c.f. Rule 39,
Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be examined
1. regarding any matter, not privileged,
2. which is relevant to the subject of the pending action,
3. whether relating to the claim or defense of any other party,
4. including the existence, description, nature, custody, condition, and location of any books, documents, or
other tangible things and
5. the identity and location of persons having knowledge of relevant facts. (2, R24)
Q: When you take the deposition of a deponent what can you ask? What matters may be inquired
A: The law says, the deponent may be examined regarding any matter whether related to the
defense of any other party.
into?
claim or
Example: Suppose if there is a case between me and somebody and I suspect Pedro knows
something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro
wherein practically I’m groping in the dark. I just start asking questions left and right hoping that, I may
stumble into something about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.
A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will
discover something in the course of a questioning. If I already know a fact, there is nothing to discover. It is
very broad that I may discover something in the course of questioning. You can ask the deponent any matter
related to the claim or defense but there are limitations.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking?
A: The following are the limitations in Deposition Taking:
1.) The matter inquired into is not privileged either under the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the pending action;
3.) The court may issue orders to protect the parties and its deponents under Sections 16 or
18.
FIRST LIMITATION: That the matter inquired into is not privileged.
There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the
wife to reveal in court what her husband told her in confidence during their marriage. That is known as the
marital privileged communication rule (Rule 130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); PhysicianPatient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24
[d]). Or, business trade secrets such as the formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.
SECOND LIMITATION: The matter inquired into is relevant to the pending action.
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While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the
topic. EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be there.
“Where were you on this date?” “I was there.” “Who was with you?” “I was with my boyfriend.” “When did he
become your boyfriend?” or “How often do you date each other?” or “What’s his favorite color? Malaki ba ang
tiyan niya?” My golly! Those questions are irrelevant. Anong pakialam niyan sa topic? Walang connection ba!
THIRD LIMITATION: The court may issue orders to protect the parties and
its deponents under Sections 14 or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary, any
party who is aggrieved can go to court and complain. And the court is authorized to issue orders to protect the
parties and its deponents under Sections 16 or 18 of this Rule.
Q: In what proceedings can a deposition be used?
A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example
is the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion for summary
judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with
affidavit, depositions or documents.
USE OF DEPOSITIONS
Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
xxxxx
Q: In what proceedings may a deposition be used?
A: The following:
1.) At the trial;
2.) Upon a hearing of a motion; or
3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary
injunction or attachment)
Q: Against whom may a deposition be used?
A: Against the following:
1.) against any party who was present; or
2.) against a party who was represented at the taking of the deposition; or
3.) against a party who did not appear or represented but was duly notified of the
scheduled deposition taking.
So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the
deposition taking of a person. The other party is free to go there and participate. So if person appeared and
participated, he is bound by the deposition. If he fails to appear but sent a representative, the same effect –
the person is bound. Suppose a person received the notice and never bothered to go or participate, he is still
bound because the law says, for as long as you are notified, you are bound.
So whether you will come or not, you are bound by the deposition taking. In this case, you might as well
show up.
This is one area of procedure in which clients do not understand. Sometimes you will received a notice from
the opposing counsel that he is going to take the deposition of your client and witnesses. The client usually will
oppose because they thought that the only time you are going to tell the story is in court and not in the office of
Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client because the laymen
usually does not know this. They do not know that the other party could compel you under the law.
The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses
can be compelled to testify long before the trial, not inside the courtroom but in somebody’s place and
everything is recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, “Do not ask
questions anymore, just believe me.”
(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony, his
testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy and
his deposition is taken beforehand, I will no longer present him but instead I will present as evidence his
deposition to take the place of his oral testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral testimony?
A: NO, a deposition can only be used for the purpose of contradicting or impeaching the
testimony of deponent as a witness. It does not exempt the witness from testifying in court. It is
only a means of knowing what the witness will testify.
When you take the deposition of a witness, you are already assured that this will be his story. If I asked you
the same question in court, naturally he will have the same answer. So there are no more surprises. If I am
asking a question identical to my deposition, I expect the answer to be identical during the trial.
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Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is
favorable to me but during the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not
reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the deposition
for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the rules on evidence.
They cannot change story during the trial because I can impeach them.
Therefore, a deposition is not a substitute for the testimony of the witness in court. You still
have to present him in court. He has to testify all over again but at least you already have a guideline. So, if he
deviates from the deposition, you can impeach him using the deposition taken under oath earlier.
party
(b) The deposition of a
or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an adverse
party for any purpose;
Q: What is the difference between paragraphs [a] and [b]?
A: The following:
1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while
In paragraph [b], it is the deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used only for contradicting or
impeaching the testimony of deponent as a witness, while
In paragraph [b], the deposition of a party can be used for any purpose. So it is broader
than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a
record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him.
But suppose the deposition is in my favor, I could present the deposition as an admission in my favor. I could
use it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as a tool to impeach
or contradict the other party.
In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only)
and the deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I
can use it as evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask
the witness to repeat his statement in court. But if it is a party, I can use it as evidence already under the rule
on admission of evidence that the act or declaration of a PARTY maybe used as evidence against him (Rule 130,
Section 26). So, that is the difference between deposition of a party and a witness.
Q: Suppose the adverse party is a corporation
A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of
the corporation.
(c) The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or
(4) that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to
make it desirable, in the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to allow the deposition to
be used; and
Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a witness for
contradicting or impeaching his testimony. It is only in paragraph [b] which applies the use of deposition for
any purpose but it refers to the deposition of the adverse party.
Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have
to present Juan or only his testimony in the deposition as evidence?
A: I have to present my witness Juan because under paragraph [a], the deposition is only good for
impeachment purposes but not a replacement for his oral testimony.
Q: Suppose, when I’m about to present Juan during the trial, a day before that he died. So, I have no more
witness. Can I now present his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However,
if he is alive, apply paragraph [a] – you cannot substitute his deposition to his oral testimony.
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Now, it is true that when you take the deposition of your own witness, you are supplying the other party a
means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to take
the deposition of your witnesses. The purpose is just in case your witness will die before he can testify in court.
At least, kung nakuha mo na ang deposition niya earlier, masuwerte ka.
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
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao
and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition
there. When the case in Davao is called, I will tell the court that my next witness is from Cebu and the distance
from Davao is more than 100 kilometers. So I have no choice but to take his deposition there. In this case, I
can offer as evidence his deposition to take the place of his oral testimony. And that is allowed as exception to
paragraph [a].
And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you
might end up without any witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no
longer be found. His whereabouts is already unknown but I was able to take his deposition earlier.
(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but when he
was cross-examined by the other party, he clarified his answers and turned out that his original answers were
not really in my favor.
So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my
favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the
lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other party will
present the other part.
In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now
the job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture
created will only be half of the whole picture.
Q: Is this unethical as it is suppressing the truth?
A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it being
espoused that lawyers are told to lie. In fact, a lawyer must be honest and true for the administration of justice.
It is the lawyer of the other side who has the absolute right to complete the picture by offering the other half. I
am not under obligation to help the other side. A lawyer is no obligation to present everything. He is only under
the obligation to support the interest of my client. What is unethical is when you present something against the
interest of your client. Yaaann!
Q: Is it not twisting the truth?
A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only
presenting one side of the story. But definitely the other party is not precluded from testifying to present the
other half of the story. If the other party fails to present the other half of the story, that is their problem. Do not
blame me. [hmp!]
Sec. 5. Effect of substitution of parties. Substitution of parties does not affect the
right to use depositions previously taken; and, when an action has been dismissed
and another action involving the same subject is afterward brought between the
same parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter as if
originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there
was substitution. Is there a need of taking depositions again? Will the deposition already taken be also
applicable to the same case although the parties are now different?
A: YES. The substitution of parties does not affect the right to use depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without
prejudice. Jolina re-filed the case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need
of repeating the whole process.
Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this
Rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. (6, R24)
Q: Can you object to the evidence which is being offered during the deposition taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule
on the objection later during the trial.
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Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person
his own witness for any purpose by taking his deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows
nothing, then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa
appendix ng tao!] You are not my witness.
If after taking your deposition, it turns out that everything you say is against me, am I bound by your
testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my
witness.
Sec. 8. Effect of using depositions. The introduction in evidence of the deposition or
any part thereof for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition,
but this shall not apply to the use by an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule. (8, R24)
GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer your
deposition in court, you are now my witness, especially if your are dead or when you are residing more than 100
kilometers.
EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.
1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your
deposition to show the court that you are a liar, I am not making you as my witness;
2.) When you offer the deposition of your opponent (adverse party), you are not making him your
witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent
says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you
precisely because he is not your witness – he is not expected to say something in your favor.
Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition whether introduced by him or by any
other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always prove that that is not
true. If it is a deposition, the same thing – you can always rebut the truth of what he said in his deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer?
Section 10:
Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the
Philippines, depositions may be taken before any
1. judge,
2. notary public, or
3. the person referred to in section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a
judge in Manila to be the deposition officer and he will not be the one to decide. He is only
the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all
lawyers are notary public. To be a notary public, you have to apply for commission in the court of the
place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public
in any other place. And usually, a commission for notary public is only good for 2 years. After 2 years,
you have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate
in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules, and
when so taken may be used like other depositions. (24a, R24)
So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public. It
can be other person who is authorized to administer oath such as prosecutors, clerk of court who is a
lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign
state or country, depositions may be taken
(a) on notice before a secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines;
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(b) before such person or officer as may be appointed by commission or under
letters rogatory; or
(c) the person referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as
well as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of
deposition abroad, because this time leave of court is required, you course it to the Department of Foreign
Affairs. The parties are not supposed to communicate directly to the Philippine Embassy.
Q: How about in places where we do not have embassy?
A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case,
the person who is authorize to take the deposition may be the one who is authorized by commission, or if not by
commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section 12:
Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be
issued only when necessary or convenient, on application and notice, and on such
terms and with such direction as are just and appropriate. Officers may be
designated in notices or commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority in the foreign
country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have Philippine Trade
Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade
mission there to act as deposition officer. Or any other person appointed by the judge by court order.
So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have
no consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer
abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as
a commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.
Q: Define letters rogatory.
A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the
case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in due
course of law, for the furtherance of justice, with an offer on the party of the court making the request, to do
the like for the other, in a similar case. (Ballentine’s Law Dict., 2nd Ed., p. 744)
EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to issue
a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please take W’s
deposition with the following request: to mail back the answer and offer to return the favor. If the request is
ignored, there is nothing that we can do. But normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a
witness who is in their jurisdiction and please send us a copy and we assure you in the future, if you have the
same problem, we will reciprocate.
That is international law. Deposition can be understand by the officer in other country because it is
internationally known. If the officer in the foreign country will not do it, we have no choice because it is only a
request. (kung ayaw mo, huwag mo!)
The SC defined again commission and letters rogatory and distinguished one from the other in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES
225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.
HELD: “A COMMISSION may be defined as an instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take depositions, or do any other act by authority of
such court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as 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 cause pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters are addressed.”
“A COMMISSION is addressed to officers designated either by name or descriptive title, while
LETTERS ROGATORY are addressed to some appropriate judicial authority in the foreign state.”
“Noteworthy in this connection is the indication in the Rules that letters rogatory may be
applied for and issued only after a commission has been ‘returned unexecuted’ as is
apparent from Form 21 of the Judicial Standard Forms appended to the (1964) Rules of Court.” So
as a matter of practice, the court should first resort to commission. You must allege that the
commission has been returned unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that
the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in
view of its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no
diplomatic relations because of the one-Chine policy?
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HELD: YES. What matters is that the deposition is taken before a Philippine official acting by
authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued
by the Philippine Court.
Sec. 13. Disqualification by interest. No deposition shall be taken before a person
who is
1. a relative within the sixth degree of consanguinity or affinity, or
2. employee or counsel of any of the parties; or who is a relative within the same degree,
3. or employee of such counsel;
4. or who is financially interested in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get
somebody who is not related.
Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to
take the deposition of any person upon oral examination shall give reasonable notice
in writing to every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs. On motion of any
party upon whom the notice is served, the court may for cause shown enlarge or
shorten the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written
interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer and
everything is recorded.
Take note that before deposition is take, there should be notice to the adverse party. The notice shall state
the time and place for taking the deposition and the name and address of each person to be examined.
The last sentence, “On motion of any party upon whom the noticed is served, the court may for cause
shown enlarge or shorten the time.” Suppose you will send me a notice that you are going to take the
deposition of a witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to
court and complain. That should be reduced. The court may come in and enlarge or shorten the time. The court
may also do this even if leave of court is not required.
Sec. 16. Orders for the protection of parties and deponents. After notice is served for
taking a deposition by oral examination, upon motion seasonably made by any party
or by the person to be examined and for good cause shown, the court in which the
action is pending may make an order that the deposition shall not be taken, or that it
may be taken only at some designated place other than that stated in the notice, or
that it may be taken only on written interrogatories, or that certain matters shall not
be inquired into, or that the scope of the examination shall be held with no one
present except the parties to the action and their officers or counsel, or that after
being sealed the deposition shall be opened only by order of the court, or that secret
processes, developments, or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in sealed envelopes
to be opened as directed by the court; or the court may make any other order which
justice requires to protect the party or witness from annoyance, embarrassment, or
oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary, any
party who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would
come here and complain. That is one of the limitations of deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may orders be issued;
what court has power to issue the orders?
A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any
party or by the person to be examined and for good cause shown, the court in which the action is pending may
issue the following orders:
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
9.)
That the deposition shall not be taken;
That it may be taken only at some designated place other than that stated in the notice;
That it may be taken only on written interrogatories;
That certain matters shall not be inquired into;
That the scope of the examination shall be held with no one present except the parties to the action
and their officers or counsel;
That after being sealed the deposition shall be opened only by order of the court;
That secret processes, developments, or research need not be disclosed;
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. (Section 16)
Sec. 18. Motion to terminate or limit examination. At any time during the taking of the
deposition, on motion or petition of any party or of the deponent and upon a
showing that the examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and manner of the
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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. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of the court to control the deposition taking.
Section 16 is about protective orders BEFORE deposition taking. Section 18 talks about protective orders
DURING the deposition taking where the court may stop or limit the deposition taking.
Sec. 17. Record of examination; oath; objections. The officer before whom the
deposition is to be taken shall put the witness on oath and shall personally, or by
some one acting under his direction and in his presence, record the testimony of the
witness. The testimony shall be taken stenographically unless the parties agree
otherwise. All objections made at the time of the examination to the qualifications of
the officer taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the deposition. Evidence objected to
shall be taken subject to the objections. In lieu of participating in the oral
examination, parties served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the witness and record
the answers verbatim. (17, R24)
Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the stenographer. And objections must be
recorded. Evidence objected to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if
that deposition is offered as evidence in court, the court will now rule on the objection. If the
objection is overruled, the answer as recorded remains. If the objection is sustained, the answer as recorded is
erased as if it was never answered. That is the meaning of “evidence objected to shall be taken subject to the
objections.”
So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court
where the case is pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to in court during the
trial, UNLESS the objection is based on a new ground which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When the testimony is fully
transcribed, the deposition shall be submitted to the witness for examination and
shall be read to or by him, unless such examination and reading are waived by the
witness and by the parties. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer with a statement
of the reasons given by the witness for making them. The deposition shall then be
signed by the witness, unless the parties by stipulation waive the signing or the
witness is ill or cannot be found or refuses to sign. If the deposition is not signed by
the witness, the officer shall sign it and state on the record the fact of the waiver or
of the illness or absence of the witness or the fact of the refusal to sign together
with the reason given therefor, if any, and the deposition may then be used as fully
as though signed, unless on a motion to suppress under section 29 (f) of this Rule,
the court holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part. (19a, R24)
So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the
deponent for examination. He may change his answers but he must state the reason for the change. And he
signs it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or refuses to
sign. In the latter cases, the deposition will be signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall certify on the deposition
that the witness was duly sworn to by him and that the deposition is a true record of
the testimony given by the witness. He shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked "Deposition of (here insert
the name of witness)" and shall promptly file it with the court in which the action is
pending or send it by registered mail to the clerk thereof for filing. (20, R24)
Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice
of its filing to all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party or to the deponent. (22,
R24)
Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.
Sec. 23. Failure to attend of party giving notice. If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith and another attends in
person or by counsel pursuant to the notice, the court may order the party giving the
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notice to pay such other party the amount of the reasonable expenses incurred by
him and his counsel in so attending, including reasonable attorney’s fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. But the deposition did not proceed because the party sending the notice
did not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can file a motion in
court to ask for reimbursement of all his expenses in this case.
Sec. 24. Failure of party giving notice to serve subpoena. If the party giving the notice
of the taking of a deposition of a witness fails to serve a subpoena upon him and the
witness because of such failure does not attend, and if another party attends in
person or by counsel because he expects the deposition of that witness to be taken,
the court may order the party giving the notice to pay to such other party the
amount of the reasonable expenses incurred by him and his counsel in so attending,
including reasonable attorney’s fees. (24a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. The party sending the notice is also present. But this time it is the witness
who is absent because the party sending the notice forgot to have the witness subpoenaed. Again, the Manila
lawyer can file a motion in court to ask for reimbursement of all his expenses.
Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A
party desiring to take the deposition of any person upon written interrogatories shall
serve them upon every other party with a notice stating the name and address of the
person who is to answer them and the name or descriptive title and address of the
officer before whom the deposition is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories upon the party proposing to take
the deposition. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross- interrogatories. Within three (3)
days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (25, R24)
The difference between a deposition upon oral examination and written interrogatories is that in oral
examination, the questions and the answers are oral.
In deposition upon written interrogatories, the questions are prepared already in advance and that is direct
interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10 days, prepare
your questions or cross-interrogatories and you also furnish them copies of it. And based on that, they can ask
further questions. If they are now sufficient, the deposition officer shall compound the question one by one but
every question requires an answer.
Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive
for you to go there and conduct an oral examination. So, the practical means is only deposition upon written
interrogatories.
Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies
of all interrogatories served shall be delivered by the party taking the deposition to
the officer designated in the notice, who shall proceed promptly, in the manner
provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness
in response to the interrogatories and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the interrogatories received
by him. (26, R24)
Sec. 27. Notice of filing and furnishing copies. When a deposition upon interrogatories
is filed, the officer taking it shall promptly give notice thereof to all the parties, and
may furnish copies to them or to the deponent upon payment of reasonable charges
therefor. (27, R24)
Sec. 28. Orders for the protection of parties and deponents. After the service of the
interrogatories and prior to the taking of the testimony of the deponent, the court in
which the action is pending, on motion promptly made by a party or a deponent, and
for good cause shown, may make any order specified in sections 15, 16 and 18 of this
Rule which is 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. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations.
Are the mistakes in deposition taking fatal?
Sec. 29. Effects of errors and irregularities in depositions.
(a) As to notice.- All errors and irregularities in the notice for taking a deposition
are waived unless written objection is promptly served upon the party giving the
notice.
(b) As to disqualification of officer.- Objection to taking a deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable diligence.
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(c) As to competency or relevancy of evidence.- Objections to the competency of a witness or the competency, relevancy,
or materiality of testimony are not waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(d) As to oral examination and other particulars.- Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted,
are waived unless reasonable objection thereto is made at the taking of the deposition.
(e) As to form of written interrogatories.- Objections to the form of written interrogatories submitted under sections 25
and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed
for serving succeeding cross or other interrogatories and within three (3) days after service of the last
interrogatories authorized.
(f) As to manner of preparation.- Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17,
19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such defect is, or with
due diligence might have been, ascertained. (29a, R24)
So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.
Rule 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
TWO TYPES OF DEPOSITION TAKING:
1.) Deposition Pending Action (Rule 23) and
2.) Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a
pending case in court, so everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before Action.
Actually, the concept of depositions before action is not really new. This is also found in the Rules prior to 1997
but was found in another rule. It was called Perpetuation of Testimony (Rule 134 of the old Rules of Court).
What the new rules did was simply to transfer Rule 134 to Rule 24.
But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of
Testimony under Rule 134.
EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it
yet. I intend to file a case against him. So there is an expected case between us in the future only there are
certain things that I still have to do. But if I file a case against B, I have some witnesses who are all ready like A
and C. But the trouble is, I learned lately that A will die soon. He has cancer and C will have to leave for
abroad, never to come back. Definitely, if I will file the case, there are no more witnesses available.
Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the
Testimony of A and C. Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can
prove really that the testimony would be relevant or important the court will issue an order allowing me to take
deposition in advance.
Section 1. Depositions before action; petition. A person who desires to perpetuate his
own testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a verified petition in the court of
the place of the residence of any expected adverse party. (1a, R134)
Q: Where will you file it?
A: In the court of the place of the residence of any expected adverse party because there is still no case. So
you have to file an independent petition under Rule 24
Sec. 2. Contents of petition. The petition shall be entitled in the name of the
petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties
and their addresses so far as known; and
(e) the names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be examined
named in the petition for the purpose of perpetuating their testimony. (2, R134)
Sec. 3. Notice and service. The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the court, at a time and place
named therein, for the order described in the petition. At least twenty (20) days
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before the date of the hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided for service of
summons. (3a, R134)
Sec. 4. Order and examination. If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be taken and specifying
the subject matter of the examination and whether the depositions shall be taken
upon oral examination or written interrogatories. The depositions may then be taken
in accordance with Rule 23 before the hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition of these people to be taken and they are
taken simply by following Rule 23.
Sec. 5. Reference to court. For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the petition for such
deposition was filed. (5a, R134)
Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it
automatically refers to the court in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken under
this Rule, or if, although not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134)
Q: How do you use the perpetuation of testimony?
A: The same uses of an ordinary deposition – for impeachment, for any other purpose like the witness is
already dead – the same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24.
Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of
a court, including the Court of Appeals in proper cases, or before the taking of an
appeal if the time therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in the said court. In such case
the party who desires to perpetuate the testimony may make a motion in the said
court for leave to take the depositions, upon the same notice and service thereof as
if the action was pending therein. The motion shall state (a) the names and
addresses of the persons to be examined and the substance of the testimony which
he expects to elicit from each; and (b) the reason for perpetuating their testimony. If
the court finds that the perpetuation of the testimony is proper to avoid a failure or
delay of justice, it may make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same manner and under the
same conditions as are prescribed in these Rules for depositions taken in pending
actions. (7a, R134)
Q: What is deposition PENDING APPEAL?
A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered a
material witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his
existence, he would have won the case. So, K will file a motion for new trial based on NDE. If his motion is
granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him
that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will file a motion
asking to take the deposition of a witness pending appeal in the event that his motion for new trial is granted,
because the witness has to go and cannot wait for the new trial.
So in the event that if I win the appeal, the case will go back. I can present the testimony because by that
time he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the
testimony of a possible witness, in the event the appeal is decided in your favor. That’s why it is called
deposition pending appeal. [oo nga ano?]
Rule 25
INTERROGATORIES TO PARTIES
Q: Going back to Rule 23, what are the modes of deposition taking?
A: The following:
(1) Deposition upon oral examination; and
(2) Deposition upon written interrogatories.
Rule 25 should not be confused with Rule 23, Section 25 – yung tinatawag na Deposition Upon Written
Interrogatories.
In written interrogatories under Rule 23, questions are already prepared beforehand and they are going to
be submitted to a deposition officer who will propound the questions to the deponent and record the answers
under oath. EXAMPLE is, if you want to take the deposition of somebody abroad through a deposition officer
212
abroad. Of course, it would be very expensive to go there and conduct an oral examination. So, the best thing is
to resort to deposition upon written interrogatories under Rule 23.
That is not the same as interrogatories to parties under this rule. We are going to distinguish one from the
other later.
Interrogatories mean written questions. EXAMPLE: I file a case against Frudo. Frudo filed an answer and of
course, he has his affirmative defenses which are statements of ultimate facts. alang details, no evidentiary
facts. But I am interested to find out what are these evidentiary facts I will write a letter addressed to Frudo
under Rule 25 and direct him to answer the following interrogatories:
According to your answer, you already paid, please answer the following
questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of this piece of land for 30
years, would you kindly narrate the improvements that you introduced in the
property?
Q2: What year did you introduce them?
Q3: Who are your witnesses? etc…
Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and you
swear to the truth of it. So I will ask you directing a question – How will you prove this? Who are your
witnesses? I will compel you to reveal the evidentiary facts. And that process is called written interrogatories to
parties. Di para na ring deposition?
I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort to Rule
25? The trouble is under Rule 23, kukuha pa ako ng deposition officer and I will have to course
everything to him. In Rule 25, walang deposition officer. Diretsahan na ito. I will ask you a question
and you will answer me. So, less expensive.
But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask
questions to a stranger. Unlike in Rule 23, you can take the deposition of any person whether a
party or not. In Rule 25, the questioning is direct. Plaintiff questions the defendant, defendant questions
the plaintiff. So, these are the differences between deposition upon written interrogatories and interrogatories
to parties.
Q: Distinguish INTERROGATORIES
INTERROGATORIES (Rule 23).
A: The following are the distinctions:
TO
PARTIES
(Rule
25)
from
DEPOSITION
UPON
WRITTEN
1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken
before a deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition officer;
2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared
beforehand. They are submitted to the deposition officer who will ask the deponent
the questions and he will record the answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions
defendant, defendant questions the plaintiff. There is no third person who will
intervene; and
3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any
person may be taken, whether he is a party or not, may be taken; whereas
Rule 25 on Interrogatories to Parties applies to parties only. You can send
interrogatories only to parties. You cannot ask question to a stranger.
SEC. 1. Interrogatories to parties; service, thereof – Under the same conditions
specified in section 1 of Rule 23, any party desiring to elicit material and relevant
facts from any adverse parties shall file and serve upon the latter written
interrogatories have been served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15) days after service thereof
unless the court, on motion and for good cause shown, extends or shortens the time.
(1a)
Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I can send
interrogatories to parties?
A: IT DEPENDS. The Rule says “under the same conditions specified in Section 1 of Rule 23.” So the manner
of resorting to interrogatories are done under the same conditions for taking of depositions.
So if an answer has already been served, leave of court is not necessary. If no answer has been
served, although the court has already acquired jurisdiction over the defendant, leave of court is
necessary. That is the same under the rule on deposition.
213
SEC. 2. Answer to Interrogatories - The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the person making them. The party upon
whom the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15) days after
service thereof, unless the courts, on motion and for good cause shown, extends or
shortens the time. (2a)
As I have mentioned, you are mandated by law to answer fully in writing my questions and signed and
sworn by you. As a general rule, you are given 15 days to answer my interrogatories.
SEC. 3. Objections to Interrogatories – Objections to any interrogatories may be
presented to the court within ten (10) days after service thereof, with notice as in
case of a motion; and answers shall be deferred until the objections are resolved,
which shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because you believe my questions are improper, you
want to object to my questions, what is your remedy?
A: You go to the court where the case is pending and object. Let the court decide whether you will have to
answer or not.
SEC. 4. Number of Interrogatories - No party may, without leave of court, serve more
than one set of interrogatories to be answered by the same party. (4)
It means, I send to you interrogatories and I thought tapos na. Then I remembered kulang pa pala iyon, so
another set – ahh hindi na pwede! Dapat once lang unless the court allows me to send to you another set.
So, as a general rule, when you send questions to your opponent, you better compile. Lahat ng gusto mong
itanong, itanong mo na because no party is given, as a rule, the privilege of securing more than one
set of interrogatories.
SEC. 5. Scope and Use of Interrogatories - Interrogatories may relate to any matters
that can be inquired into under section 2 of Rule 23, and the answers may be used
for the same purposes provided in section 4 of the same Rule (5a)
Q: What kind of questions can you ask under Rule 25 to your opponent?
A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided it is relevant; and
2.) it is not privileged.
Q: Suppose there are already answers to the interrogatories given by your opponent, how do you use those
answers?
A: They have the same uses under Rule 23 Section 4 – you can use it for impeachment, or any other
purpose like to prove an admission already made by the adverse party.
SEC. 6. Effect of Failure to serve written interrogatories – Unless thereafter allowed by
the court for good cause shown and to prevent a failure of justice, a party not served
with written interrogatories may
not be compelled by the adverse party
1. to give the testimony in open court, or
2. to give a deposition pending appeal (n)
This is entirely a new question. It has no counterpart in the old rules. Now, this is a very controversial
section. Actually, you will not understand this until you study Evidence where you can compel the adverse party
to testify. This is actually related to Rule 132, Sec. 10 (e) of the Rules of Evidence.
[The following discussions are taken from the Remedial Law Review Transcription 1997-98]
This is related to the rule on Evidence particularly Rule 132, Section 10 [e]:
Rule 132, Sec. 10. Leading and misleading questions. – A question which suggests to
the witness the answer which the examining party desires is a leading question. It is
not allowed except:
xxxxxx
xxxxxx
(e) of a witness who is an adverse party or an officer, director, or managing agent
of a public or private corporation or of a partnership or association which is an
adverse party.
xxxxxx
Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse party to
the witness stand. A party may call the adverse party to the witness stand and interrogate him by leading
questions – as an element of surprise. I can call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am entitled under the Rules to ask leading
questions as if he in under cross-examination because he is the adverse party. He is not actually my witness.
The purpose here is to actually secure admissions from him while he is in the witness stand because anything
that he says against me does not bind me even if I were the one who called him to the witness stand. But
anything he might say that is against himself binds him.
214
Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to
send him ahead written interrogatories. I have to follow Rule 25. Now, if I do not send written
interrogatories to him, then I have no right to call him to the witness stand. That is why Section 6
is a very radical provision.
So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as it has
happened several times before. The lawyer is caught by surprise when the opposing party says that it would
present the adverse party to the witness stand. The lawyer is then caught off-guard as he has not talked to his
client yet.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written interrogatories were
not sent under Rule 25. Hence, you can object to the opposing counsel’s motion to call your client to the
witness stand.
This practically compels the lawyers to avail of the modes of discovery because if you will not compel him,
chances are Filipino lawyers do not make much use of the modes of discovery. So now, if the opposing counsel
suddenly sends interrogatories to you, the he must be planning to call you in the witness stand later.
Rule 26
ADMISSION BY ADVERSE PARTY
Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for admission
is similar to interrogatories. You send questions to your opponent and he’s bound to answer in writing within 15
days under oath but the framing of the questions are different.
In a request for admission, you are requiring the opposing party to admit the truth or
authenticity of certain documents. For example: “Do you admit the genuineness of the documents marked
as Annex A?” We are talking here of DOCUMENTS which are NOT ACTIONABLE because if the document is
actionable then it has to be pleaded properly.
In other words, if I have 20 documents, to find out whether you will admit them or not, I will send you a
copy and ask, “Do you admit the genuineness of this? Do you admit the truth?” [secreeet!]
So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the question is
framed in such a way that the premise is laid down and I ask you whether or not you admit, then the question is
proper under Rule 26. BUT if the question if framed in such a way that it is not answerable by yes or no, then
apply Rule 25.
Example: Suppose my question is like this – “who was with you?” That is proper under Rule 25. Pero sabi
ko, “A and B were with you, admitted?” That is Rule 26. Kaya nga the way the questions were framed
determines what kind of mode of discover are you going to apply.
Section 1. Request for admission. At any time after issues have been joined, a party
may file and serve upon any other party a written request for the admission by the
latter of the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of fact
set forth in the request. Copies of the documents shall be delivered with the request
unless copies have already been furnished. (1a)
Q: So, what will you request the other party to admit?
A: The genuineness of any material and relevant document described in and exhibited with the request or
of the truth in the request.
Q: When do you apply this mode of discovery?
A: “At anytime after issues have been joined.” Meaning, there is already an answer.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started according to
Section 1, “At any time after issues have been joined.” So it presupposes that there is already an answer. Unlike
in interrogatories, you can do it even before an answer is served provided there is leave of court. This is the
second difference between Rule 25 and Rule 26.
Sec. 2. Implied admission. Each of the matters of which an admission is requested
shall be deemed admitted unless, within a period designated in the request, which
shall not be less than fifteen (15) days after service thereof, or within such further
time as the court may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting forth
in detail the reasons why he cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court by the
party requested within the period for and prior to the filing of his sworn statement
as contemplated in the preceding paragraph and his compliance therewith shall be
deferred until such objections are resolved, which resolution shall be made as early
as practicable.(2a)
Q: So, if I send to you a request for admission, what is your duty?
A: Within 15 days, you must answer my request under oath, whether admitting or denying my request.
Take note, ‘under oath’ also, parang interrogatories.
215
Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to file any
answer to my request for admission. What is the effect of failure to answer the request?
A: You are deemed to have admitted. There is an implied admission of all the things that I asked you to
admit. Section 2 says, each of the matters of which an admission is requested shall be deemed unless you file
your answer to the request. Meaning, if you will not answer my request, under the law, all the matters which I
request you to admit are deemed impliedly admitted. That is the penalty for not bothering to file your reply
under Rule 26.
BAR QUESTION : A sends a request for admission to B and B made an admission. However, during the trial,
A did not offer in evidence the answers to the request. Can the court take judicial notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial
matter between the parties. But if the same question is asked,
NOW, the answer would be YES, because under the NEW RULES, you are already required to file
and serve. Therefore the court may now take judicial notice because it already forms part of the
record.
BAR QUESTION:
Suppose, I will file a case against you and I will attach to my complaint a Promissory
Note – actionable document. In your answer, you deny the genuineness and due execution of the Promissory
Note. Meaning, as a defense you allege that your signature is forged. There was a proper denial because it was
under oath.
After a week, I will now send to you a request for admission under rule 26, where I attach the same
promissory note, and I will ask you, “Do you admit the genuineness and due execution of this promissory
note?” Now, when you receive the request, you ignore it because you already denied the promissory note
under oath in your answer. So you argue, “Why do I have to deny it again under Rule 26 when I already denied
it under Rule 8? There is no need for me to deny it all over again.” I can also argue, “Even if you denied it
under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are deemed to have
admitted the genuineness and due execution of the document.” Who is right between the two of us?
ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already
denied in your pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all over
again otherwise you’re impliedly admitting it. To my mind, that is already answered in the 1988 case of:
PO vs. COURT OF APPEALS
164 SCRA 668
FACTS: There was an allegation made by the plaintiff in his complaint which allegation was
specifically denied in the answer. Plaintiff asked the same question in a request for admission. Inulit
niya ang tanong and this time the defendant did not answer the request for admission.
Now, under Section 2, if the party as requested to make an admission does not make so within
15 days, the matter requested is deemed admitted - impliedly admitted - that is the penalty.
If you do not want to respond to my request, everything that I requested will be impliedly
admitted. Now, you already denied the allegation in my complaint specifically in your answer, I
repeated it in a request for admission and this time, you failed to respond.
Now, under Rule 26, the plaintiff can claim, “Well, since you did not respond, then it is already
deemed admitted.” Suppose the other party would say, “No, I already denied that in my answer.
There is no obligation for me to the deny the same all over again under Rule 26.”
ISSUE: Is there a need for another denial in the request for admission?
HELD: NO NEED. When a matter is already effectively denied in the pleading, then
there is no need to ask it all over again. In other words, what has already been denied is
denied and therefore you cannot say that for failure to deny it is already deemed admitted.
“A request for admission is not intended to merely reproduce or reiterate the allegations of the
requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to establish said party’s cause of
action or defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy.”
If we have to answer the same question under the ruling in PO, it would seem that the defendant is correct.
Why do I have to deny, if I have already denied it? So, there is no implied admission.
Sec. 3. Effect of admission. Any admission made by a party pursuant to such
request is for the purpose of the pending action only and shall not constitute an
admission by him for any other purpose nor may the same be used against him in
any other proceeding.(3)
Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for admission
in only good for that case. It cannot be used in any other case or proceeding. It limits therefore the effectivity of
an admission. It is only valid for the pending case.
Sec. 4. Withdrawal. The court may allow the party making an admission under this
Rule, whether express or implied, to withdraw or amend it upon such terms as may
be just. (4)
Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding.
Q: Is the party admitting allowed to withdraw, change or amend his previous admissions?
A: YES, but with leave of court.
Sec. 5. Effect of failure to file and serve request for admission. Unless otherwise
allowed by the court for good cause shown and to prevent a failure of justice, a party
who fails to file and serve a request for admission on the adverse party of material
216
and relevant facts at issue which are, or ought to be, within the personal knowledge
of the latter, shall not be permitted to present evidence on such facts. (n)
This is one of the more controversial sections in the new Rules. This is a mandatory mode of discovery. “A
party who FAILS to FILE and SERVE a request for admission on the adverse party of material and relevant facts
in issue which are or ought to be within the personal knowledge of the latter shall not be permitted to present
evidence on such facts.” This is A VERY HARSH RULE – a new rule which again shows the intention of the law to
compel the lawyers to avail of the modes of discovery.
An example of the section: Let’s assume that there is a fact which I want to prove and I know that you know
but I do not know whether you’ll admit it or not. Under the rules, I have to send you a request for admission to
confirm it.
Suppose I do not send you a request because anyway there are very few lawyers who do that.
So, I did not send a request and then during the trial, I will just try to prove it. Then the adverse
party says, “Teka muna, what are you trying to prove? You should have sent me a request for
admission.” And then you say that you forgot to send one.
So, the adverse party here objects because he argues that I cannot present evidence to prove
something which he could have admitted in a request for admission. This is something which the
party could have admitted had I resorted to a request for admission under Rule 26, and since I did
not, then he can now prevent me from proving it.
Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule because it
is practically placing the other party in estoppel. Basically the argument will go like this:
NASTY MACK: “Why did you not send me a request for admission? Had you sent me, I would
have easily admitted that but since you did not, then I will bar you form proving it.”
(practically every fact aimed to be proved can be objected to
BEN-DEATHA: “How could I have known what facts you will admit and not admit?”
NASTY MACK: “Precisely, that is why you should have sent me a copy, STUPID!”
See how dangerous this provision is? I can bar you from proving anything simply because you failed to avail
of the modes of discovery. This was not found in the Old Rules.
Generally, matters which are objectionable should be pushed by the party concerned or affected. That is
because it is for his benefit. I do not think it involves public policy that’s why even if you invoke it, the court
may still refuse to apply it. Look at the opening of the first paragraph: “Unless otherwise allowed by the court
for good cause and to prevent a failure of justice.” So that’s an exception.
So, even if you are correct, the judge may say that it’s too much. Even if you invoke it, the judge may still
say that there will be failure of justice if he will apply it. With more reason, no judge will use it if you will not
invoke it. It is practically barring the party from proving his case. That is why even if you invoke this, judges are
very careful not to apply this. So, you have to invoke this at least, to call the attention of the judge though the
judge may still refuse because there might be a failure of justice.
The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of Discovery.
Let’s go to some interesting cases on request for admission.
REBONERIA vs. COURT OF APPEALS
216 SCRA 627 [1992]
FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the defendant
(because anyway, under Rule 13, the general rule is that everything should be coursed through the
lawyer) So, the request was sent to the lawyer. Since there was no response, can there be an
implied admission?
HELD: NONE. In a request for admission, since we are questioning the party, we
should address it to him, and not to the lawyer. A request for admission should be
served upon the party, not his counsel. The general rule under Rule 13 cannot apply where the
law expressly provides that notice must be served upon a definite person.
In such cases, service must be made directly upon the person mentioned in the law and upon
no other in order for the notice to be valid.
But the case of REBONIA should not be confused with the case of
PSCFC FINANCING CORP. vs. COURT OF APPEALS
216 SCRA 838 [1992]
FACTS : A request for admission was sent to a party. The party told his lawyer to answer the
request. So, it was the lawyer who answered the request for admission under oath.
ISSUE: Was there an effective answer or reply to the request for admission as it was the lawyer
who made the reply ?
HELD : YES, because under the Rules, a client can always act through the lawyer and he is
bound by the actuations of his lawyer. This is practically the rule on Agency. If we will say that the
lawyer has no authority even if ordered by the client , then we are altering the Rules on Agency and
also the rule that the lawyer can always act in behalf of his client.
217
And assuming that a lawyer is not authorized to make the complaint, then why is the adverse
party the one complaining? It is the client who has the authority to impugn the acts of his lawyer
and not the adverse party. Timang!!
Principles to remember in the case of REBONERIA and PSCFC:
1.
A request must be directed to the party whose admission is sought. Service of request to
any other person is not a valid request at all.
2.
A request must always be directed to the party whose admission is sought, but the latter
may delegate to his lawyer the right to answer the request. Such is valid so long as there is a valid
authorization.
Rule 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
SEC. 1. Motion for Production or inspection; order – Upon motion of any party showing
good cause therefore, the court in which an action is pending may
(a) Order any party to produce and permit the inspection and copying or
photographing by or on behalf of the moving party, of any designated documents,
papers, books, accounts, letters, photographs, objects or intangible things, not
privileged which constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control; or
(b) Order any party to permit entry upon designated land or other property in his
possession for control for the purpose of inspecting, measuring, surveying or
photographing the property of any designated relevant object or operation thereon.
The order shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and conditions as are
just (1a)
EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in possession of
several invoices and receipts which he would present in trial. Harry wants to get hold of and inspect all these
documents. Since these are not actionable documents, Voldemortz is not required to show or include them in
the pleadings. No need to plead. So, Harry want to see these books, photographs, accounts, objects which
Harry know Voldemortz will present during the trial. If Harry will ask Voldemortz to show these things, I don't
think Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?
A: Harry will apply Rule 27 by filing a motion in court stating that Voldemortz is in the possession of such
documents and Harry would like to see, inspect or have them copied, provided they are relevant and not
privileged. And the court will issue an order directing Voldemortz on a specified time on place to bring them for
purposes of inspection, survey, copying, photocopying, etc. Voldemortz have no choice but to show Harry all
these objects.
EXAMPLE: Harry sued Voldemortz for recovery of ownership of land. Voldemortz in possession and such is in
a position to enable to properly describe the land and all its improvements. Harry would like to see the property
to inspect and survey the same.
Q: What is Harry’s remedy?
A: File a motion in court to permit him (Harry) to enter the land for purposes of inspecting, measuring,
surveying or photographing the property. And the court will issue an order specifying the time, place and the
manner of inspection. Now, Harry will have an access to the documents, things, land, etc. which are under
Voldemortz’s control or possession.
Q: Give the requisites of production or inspection of documents or things (Rule 27)?
A: The following are the requisites: MNDMNP
1.) A motion (leave of court) must be filed by a party showing good cause therefor;
2.) Notice of the motion must be given to all other parties;
3.) The motion must sufficiently describe the document or thing sought to be produced or
inspected;
4.) The document or thing sought to be produced or inspected must constitute or contain
evidence material to the pending action;
5.) The document or thing sought to be produced or inspected must not be privileged; and
6.) The document or thing sought to be produced or inspected must be in the possession of
the adverse party or, at least, under his control. (Section 1, Rule 27; Lime Corp. vs. Moran, 59
Phil. 175; Alvero vs. Dizon, 76 Phil. 637)
NOTE: Rule 27 is not the same as Rule 21 on subpoena duces tecum. Therefore, the next question is:
218
Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from Subpoena duces tecum
under Rule 21.
A: The following are the distinctions:
1.) Rule 27 is essentially a mode of discovery (simply to discover), whereas
Rule 21 on subpoena duces tecum is a means of compelling production of evidence
which must be brought to court;
2.) Rule 27 is limited to parties in the action, whereas
Rule 21 on subpoena duces tecum may be directed to any person, whether a party or
not;
3.) The order under Rule 27 is issued only upon motion with notice to the adverse party,
whereas
A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.
Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery.
So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for a
physical or mental examination. So the court will issue an order. Konti man lang ang kasong ganito. For
example, damage suit in damage cases, the plaintiff may be exaggerating his injuries.
The only way to confirm it is to have another doctor examine him to find out whether his injury is really
genuine or sinadya may be for the purpose of securing a bigger mount of damages. Remember the joke which
we mentioned in Evidence about the plaintiff who met an accident na na-dislocate yung shoulder, so
permanent ang injury. So when he testified in court, he was asked to raise his arm – higher, higher please! No
more – the injury is permanent.
Sabi ng court, “So that was after the accident. What about before the injury? How high can you raise you
arm?” A, ganito o! So there is no more need for a physical examination because he has already demonstrated it
(he was just exaggerating his injury).
SEC. 1. When Examination may be ordered – In an action in which the mental or
physical condition of a party is in controversy, the court in which the action is
pending may in its discretion order him to submit a physical or mental examination
by a physician (1)
SEC. 2. Order for examination – The order for examination may be made only upon
motion for good cause shown and upon notice to the party to be examined and to all
other parties, and shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made. (2)
Rule 28 applies in all actions where the mental or physical condition of a party is in question or
controversy. EXAMPLES:
a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however,
the state of psychological incapacity must not have been existing only now for the first time. It
must have existed at the time of the marriage;
b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the
party to undergo physical or medical examination by a doctor to test whether the allegation is true
or not;
c.) annulment of contract on the ground of insanity at the time of execution (lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I believe
that you are merely exaggerating the extent of your injury so that your claim for damages will be
higher, and diskumpiyado ako sa doctor mo, I will ask the court to issue an order for you to undergo
physical examination by another doctor, so that we will know whether your claim is really valid or
not.
Q: Give the requisites of physical and mental examination of persons under Rule 28:
A: The following are the requisites:
1.) The physical or mental condition must be a subject of controversy of the action;
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be examined and to all other parties.
Sec. 3. Report of findings. - If requested by the party examined, the party causing
the examination to be made shall deliver to him a copy of a detailed written report of
the examining physician setting out his findings and conclusions. After such request
and delivery, the party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the party
examined refuses to deliver such report, the court on motion and notice may make
an order requiring delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his testimony if offered at the
trial. (3a)
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Sec. 4. Waiver of privilege. - By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner,
-
the party examined waives any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined or may thereafter
examine him in respect of the same mental or physical examination. (4)
Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So Maya asks
for a copy of the finding after examination. When Maya asks for the finding, Dino can also ask for Maya’s
examination by the personal doctor of Maya, previously made or thereafter.
The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver such
report, then under Section 3, he cannot testify. He cannot give evidence.
Also, once a party asks for a report of the examination, he automatically waives the privilege of physicianpatient relationship. So if Dino does not want to waive the privilege, he should not ask a copy of the report of
the physician.
Q: Going back to the different modes of discovery, when is leave of court required? Not required?
A: In the following cases:
1.) Depositions
– pending action, no answer filed yet
– pending action, answer filed already
– before action or pending appeal
2.) Interrogatories – no answer filed yet
– answer filed already
3.) Request for admission
4.) Production or Inspection of Documents or Things
5.) Physical and Mental Examination of Persons
REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED
NOT REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED
Rule 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is
allowed and encouraged to determine, at earlier time, essential issues and to promote settlement or
expeditious trial. Lawyers should avail of the modes of discovery because they are very helpful in determining
the issues and will even provoke a settlement if you believe na wala kang laban.
And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987) where
the SC said that lawyers and parties should encourage to avail the modes of discovery procedures provided for
in the rules. This is a neglected area in judicial process. Its use will expedite the determination of cases.
Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures.
Practically, all parties avail the same even before the trial. At pre-trial stage, all evidence are already prepared
for the case. In the Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes of discovery
despite the admonition by the SC. Siguro, it is our culture. As much as possible we want to keep things to
ourselves. [pinapalabas na lang sa pwet! he! he!]
Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and the
parties to avail 100% of the process of pre-trial? There is another case naman involving the modes of
discovery where the same Justice lamented the inability of lawyers and even judges to effectively apply the
modes of discovery. I’m referring to the case of
REPUBLIC vs. SANDIGANBAYAN
204 SCRA 212
HELD: “It appears to the Court that among far too many lawyers (and not a few judges), there
is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and
operation of the modes of discovery, at least a strong yet unreasoned and unreasonable
disinclination to resort to them— which is a great pity for the intelligent and adequate use of the
deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other
jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up
adjudication.”
“Evidentiary matters may be inquired into and learned by the parties before the trial. The
desideratum is that civil trials should not be carried on in the dark. The Rules of Court make this
ideal possible through the deposition-discovery mechanism set forth. The experience in other
jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one
of the most necessary ends of modern procedure: it not only eliminates unessential issues from
trials thereby shortening them considerably, but also requires parties to play the game with the
cards on the table s