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There is a table, a gavel, there is someone sitting there. Then
below, there are lawyers sitting down. But actually, what is
described is a courtroom and not a court.
INTRODUCTION
1.
a)
b)
2.
Substantive law – a part of law which creates,
defines or regulates rights concerning life, liberty or
property, or the powers of agencies or
instrumentalities for the administration of public
affairs. (Primicias vs. Ocampo 49 OG 2230)
A court has no physical existence, only a legal one.
Q: What is a court?
Procedural/Adjective/Remedial Law – prescribes
the method of enforcing rights or obtaining redress
for their violation. (Bustos v. Lucero 81 Phil.
640,650)
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?
Sources of Remedial law:
a)
b)
c)
d)
e)
3.
Similarly, when you are asked to describe a corporation, you will
refer to the building, the office, the employees etc. But 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.
Major divisions in law:
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 Constitution
Laws creating the judiciary
Laws defining and allocating jurisdiction to different
courts
Rules promulgated by the SC
circulars, administrative orders, internal rules and
SC decisions
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.
Scope of Remedial Law:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
So, judicial power is not exercised only by one court, but by several
courts.
Constitution
Civil Procedure (Rules 1 to 56 and other related
laws);
Provisional Remedies (Rules 57 to 61);
Special Civil Actions (Rules 62 to 71)
Special Proceedings (Rules 72 to 109)
Criminal Procedure (Rules 110 to 127)
Evidence (Rules 128 to 133)
Katarungang Pambarangay Law (RA 7160) and
Implementing rules
Revised Rules on Summary Procedure.
Rules on Small Claims Case
Rules on Environmental Cases
There is a division of labor and this division is done thru delineating
jurisdiction among courts. Jurisdiction will be discussed in the
following parts.
2.)
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.
JUDICIAL POWER includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Sec. 1, Art. VIII, 1987
Constitution)
Q: Distinguish court from judge.
A: The following are the distinctions:
The power of judicial review is the Supreme Court's power to
declare a law, treaty, international or executive agreement,
presidential decree, proclamation, order, instruction,
ordinance or regulation unconstitutional.
Basic concepts in Remedial Law
1.)
Judge
Court
Describe it.
1
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.
2.)
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. In the Supreme Court, for
example, 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
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themselves. The court is continuous. It does not die
alongside with the justices who presided on it.
3.)
1.
2.
3.
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)
4.
Court of Tax Appeals (RA 1125)
Sandiganbayan (PD 1486 as amended)
Sharia District Courts and the Sharia Circuit
Courts (PD 1083 , also known as the Code of
Muslim Personal Law);
Family Courts
Policy of Judicial Hierarchy
3.)
Hearing and Trial
This policy means that a higher court will not entertain direct resort
to it unless the redress desired cannot be obtained in the
appropriate courts.
Hearing is not synonymous with trial. The words “hearing” and
“trial” have different meanings and connotations. Trial may refer to
the reception of evidence and other processes. It embraces the
period for the introduction of evidence by both parties. Hearing, as
known in law, is not confined to trial but embraces the several
stages of litigation, including the pre-trial stage. A hearing does not
necessarily mean presentation of evidence. It does not necessarily
imply the presentation of oral or documentary evidence in open
court but that the parties are afforded the opportunity to be heard.
(Republic v. Sandiganbayan, 416 SCRA 133)
While it is true for example that the Supreme Court, Court of
Appeals and the Regional Trial Courts have concurrent original
jurisdiction to issue writs of Certiorari, Prohibition, Mandfamus,
such concurrence does not accord litigants unrestrained freedom
of choice of the court to which the application for the writ may be
directed. The application should be filed with the court of lower
level unless the importance of the issue involved deserves the
action of the court of the higher level.
HIERARCHY OF THE COURTS
4.)
In the 1996 BAR: One of the questions in Remedial Law was: State
the hierarchy of the Courts in the Philippines.
Classification of courts in general.
A: Generally, courts may be classified as:
1.
Constitutional and Statutory Courts;
2.
Superior Courts and First-Level courts (inferior courts);
3.
Courts of Original jurisdiction and Courts of Appellate
jurisdiction;
4.
Civil Courts and Criminal Courts;
5.
Courts of law and Courts of equity;
6.
Courts of record; probate Courts; Land Registration
Courts; Ecclesiastical Courts; Military Courts
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
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. The first cannot be abolished by Congress
without amending the Constitution while the second can be so
abolished by just simply repealing the law which created them.
REGIONAL TRIAL COURTS
MetTC
MTCC
MTC
MCTC
Note:
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, particularly Art. XIII, Section 5
ordered the then National Assembly to create a special court to be
known as the Sandiganbayan which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices and
such other offenses committed by public officers and employees,
including those in government-owned or controlled corporations in
relation to their office as may be determined by law.. It was law
that created the Sandiganbayan (PD 1486).
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Minglanilla, Argao
MCTC- circuitized areas because it is impractical and expensive to
maintain one MTC in every municipality.
b.) Special courts
There are also Special Courts which are also considered part of the
judiciary. These are:
The CA, RTC, and the MTC are created by the Congress.
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So there is only one Constitutional court. All the rest, from the CA
down and all other special courts, are only creatures of Congress.
may bring the case to the appellate court which has the power to
change the decision of the original court.
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, Juvenile and Domestic courts, etc.) and RTC, IAC,
MTC were created. That was the judicial reorganization of 1980
under BP 129. But there is only one court which the Batasan
Pambansa could not touch – the Supreme Court.
Q: Is the SC an original or appellate court?
A: The SC is both an original and an appellate 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?
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
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 like an action for
annulment of an RTC judgment.
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. The refer to these courts which have the power of
review or supervision over another lower court.
Q: How about the RTC? Is the RTC an original or appellate court?
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) They are those which, in relation to
another are lower in rank and subject to review and supervision of
the latter.
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: What courts are superior or inferior?
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.
Q: How about the MTC? Is the MTC an original or appellate court?
A: It DEPENDS from what viewpoint you are looking at it. If you are
looking from the viewpoint of the Constitution, there is only one
superior court – the Supreme Court.
CIVIL COURTS vs. CRIMINAL COURTS
From the viewpoint of other laws, 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.
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)
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.
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 is true with the CA, RTC and MTC.
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 does not have any supervisory authority over any
lower court.
So, in the Philippines, there is no such thing as a 100% criminal
court or civil court. During the 70's there was the old Circuit
Criminal Court. As the name implies, it is purely a criminal court.
But with other courts, this was abolished by BP 129.
ORIGINAL COURT vs. APPELLATE COURT
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.
Q: Distinguish original court from appellate court.
A: ORIGINAL COURTS are those where a case is originally
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
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COURTS OF LAW vs. COURTS OF EQUITY
ALONZO vs. IAC - May 28, 1987
Q: Distinguish Courts of Law from Courts of Equity.
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.”
A: COURTS OF LAW are tribunals administering only 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 RECORD
Courts Of Law dispose cases according to what the promulgated
law says while Courts Of Equity adjudicate cases based on the
principles of equity. Principle of equity means principles of justice,
fairness, fair play or of what is right and just without inquiring into
the terms of the statutes.
Those whose proceedings are enrolled and which are bound to
keep a written record of all trials and proceedings handled by
them. RA 6031 mandates all MTCs to be courts of record.
PROBATE COURTS
Q: Are the Philippine courts, courts of law? Or courts of equity?
Do they decide cases based on what the law says or based on the
principle of justice and fairness?
Those which have jurisdiction over settlement of estate of
deceased persons.
A: In the Philippines, our courts, original or appellate, are both
courts of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
LAND REGISTRATION COURTS
Those which have jurisdiction over registration of real properties
under the Torrens System.
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.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, we must know that the
courts of justice have what we call inherent powers. Just like the
State have certain inherent powers, namely; Police power, power
of taxation, and power of eminent domain.
As a matter of fact under the Civil Code, when the law is silent, you
decide it based on what is just and fair, thus, the saying 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
principles of estoppel, laches or solutio indebiti are no longer
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.
Their very existence automatically necessitates the existence of
these powers.
Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court provides:
ESTOPPEL
Section 5. Inherent powers of courts. Every
court shall have the power:
Estoppel is an equitable doctrine which means that it is not fair that
you disown your own representation after misleading somebody.
But if you look at the Civil Code, there is a chapter on estoppel. So
if you apply estoppel, you cannot say that you are applying a
principle not found under the law.
(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;
LACHES
It is considered to be the half-brother of prescription because it
means if you delay a certain right then you must have no right.
That is more of equity, rather than of law.
(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;
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!
(d) to control, in furtherance of justice, the
conduct of its ministerial officers, and of all
other persons in any manner connected with
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a case before it,
appertaining thereto;
in
every
manner
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -
(e) to compel the attendance of persons to
testify in a case pending therein;
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.
(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;
b) All other processes whether issued by the
RTC or MetTC, MCTC, and MTC may be served
anywhere in the Philippines, and, the last
three cases, without a certification by the
judge of the RTC.
(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.
A: Under Section 3 of the Interim Rules, you have to distinguish
what kind of writ or process you are talking about:
a)
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.
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.
EXAMPLE: If you are illegally detained, you can ask the court to
issue a writ of habeas corpus. Now, a person is detained in Cagayan
de Oro and the family is here in Cebu City. They filed a petition for
habeas corpus here in Cebu City. Is it proper?
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.
No. Cebu City belongs to the 7th Judicial Region while Cagayan de
Oro is in the 11th or 12th Judicial 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.
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.
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.
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law.
What Section 6 is trying to say is that when courts have the power
to decide, they have the power to enforce. And if the law is silent,
judges have to think of how to do it provided they conform to the
spirit of the rule. So they should not make the order useless simply
because there is no rule. That is part of their power.
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)
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that should be emphasized is Section 3 of the
Interim Rules.
Question: The court of Cebu issues a writ or a process. Can that
writ or process be enforced in Manila? What is the extent of the
enforceability of a writ issued by a court?
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BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE
PHILIPPINES
of constitutional rights, pleading, practice, and procedure in all
courts.”
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.
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.”
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.
LIMITATIONS
1.
SUMMARY:
1.)
2.)
3.)
4.)
2.
First Law – August 07, 1901 – Act 190 – Code of Civil
Procedure (40 years)
Second Law – July 01, 1940 – Old Rules of Court (24
years)
Third Law – January 01, 1964 – Revised Rules of Court
(33 years)
Fourth Law – July 01, 1997 – New Rules of Civil
Procedure.
3.
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.
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.
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.
SOURCES
1.
2.
3.
4.
The Rules of Court shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
The Rules of Court shall be uniform for all courts of
the same grade; and
The Rules of Court shall not diminish, modify or
increase substantive rights.
Previous Rules of Court;
Jurisprudence;
New Civil Code;
SC Circulars
So when you say, “I speak by the law” you mean I will do it in the
name of the law. It connotes authority or power.
So jurisdiction implies authority or power to act.
RULE-MAKING POWER OF THE SUPREME COURT
But what act or acts is/are authorized?
The Rules of Court (1940, 1964, 1997) have all been enacted by the
SC. It is law, not enacted by Congress but enacted by the SC.
If we relate jurisdiction to courts, it means authority or the power
to hear, try and decide a case. So jurisdiction means the power or
authority 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) as the judgment or decree is the end for which
jurisdiction is exercised, and it is only through the judgment and
its execution that the power of the court is made efficacious and
its jurisdiction complete (21 CJS, Courts, S 9). The power to
control the execution of its decision is an essential aspect of
jurisdiction. It cannot be the subject of substantial subtraction
and the most important part of the litigation is the process of
execution of decisions (Echegaray vs. Sec. of Justice, 301 SCRA
96).
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 which states that: the SC "shall
promulgate the rules concerning the protection and enforcement
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Test of Jurisdiction
A: Jurisdiction pertains to the authority to hear and decide a case.
Any act of the court pursuant to such authority, including the
decision and its consequences is exercise of jurisdiction.
Since jurisdiction refers to power or authority to hear, try and
decide a case, it cannot depend on the correctness or rightfulness
of the decision made. (Century Insurance Co. v. Fuentes, 2 SCRA
1168 [1961]) Correctness or rightfulness of the decision relates to
the exercise of and not to the authority itself.
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 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)
The test of jurisdiction is whether the court has the power to
enter into the inquiry and not whether the decision is right or
wrong. (Herrera vs. Barreto, 25 Phil. 245)
Q: Why is it important to distinguish jurisdiction from exercise of
jurisdiction?
Duty of the court to determine its jurisdiction
It is the duty of the court to consider the question of jurisdiction
before it looks at other matters involved in the case. It may, and
must, do this on its own motion without waiting for the question
of jurisdiction being raised by any of the parties involved in the
proceeding (20 Am Jur 2d, Courts, S 92). Courts are bound to take
notice of the limits of their authority and they may act accordingly
by dismissing the action even thought the issue of jurisdiction is
not raised or not even suggested by counsel (Ace Publicatiions vs.
Commissioner of Customs, 11 SCRA 147)
A: Definitely, a court acting as such may commit errors or mistakes
and questioned later before a higher court. The procedure or
remedy in case of a mistake or error would be dependent on
whether it is an error of jurisdiction or an error in the exercise of
jurisdiction also known as 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. But the court denied the motion to quash.
Meaning, the judge has decided to assume jurisdiction. What is the
error committed?
Q: What is the effect if the court has no jurisdiction or of absence
or lack of jurisdiction?
When the court without authority assumes authority over the case
that is called ERROR OF JURISDICTION – the court committed an
error of jurisdiction.
A: If a court has no jurisdiction, it has no power or authority to try
a case and because it has no authority it must not exercise it.
Exercise of absent authority or power is necessarily nothing. Thus,
without jurisdiction, the entire proceedings would be null and
void.
EXAMPLE: Suppose the case for murder is filed in the RTC where
the court has jurisdiction. But in the course of the trial, it
committed mistakes like the court misinterpreted or misapplied
the provision of the RPC or the Indeterminate Sentence Law. What
error is committed?
The only recourse for the court, absent jurisdiction, is to dismiss
the case motu proprio or on motion for without authority it
cannot act.
Obviously the RTC has the authority to hear and decide the case
and therefore acted with authority or jurisdiction. There is no error
of jurisdiction.
Q: What about if it has jurisdiction?
A: It is the duty of the court to exercise the jurisdiction conferred
upon it by law and to render a decision in a case properly
submitted to it. Failure to do so may be enforced by way of a
mandamus proceeding (20 Am Jur. 2d, S 93).
However, in the exercise of such authority it committed a mistake,
thus, the error committed is error in the exercise of jurisdiction,
also known as error of judgment.
Constitutional Guarantee of Access to Courts and Jurisdiction
Q: Is the proceeding null and void?
The Constitutional guarantee of access to courts refers to courts
with appropriate jurisdiction as defined by law. It does not mean
that a person can go to any court for redress of grievances
regardless of the nature or value of his claim. (Santos III v.
Northwest Airlines, 210 SCRA 256 [1992])
A: NO. What is committed is an error in the exercise of jurisdiction
and if not corrected the error can become final and executory. In
other words, if not objected to, it will stay.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
JURISDICTION vs. EXERCISE OF JURISDICTION
Distinguish ERROR OF JURISDICTION from ERROR OF JUDGMENT.
Q: Distinguish jurisdiction from exercise of jurisdiction.
A: The following are the distinctions:
1.)
7
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
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of jurisdiction; Errors which the court may
commit in the exercise of such jurisdiction, like
errors of procedure or mistakes in the court's
findings, are merely ERRORS OF JUDGMENT;
whereas,
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: YES, because you never left 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.
When a court takes cognizance of a case over the
subject matter of which it has no jurisdiction,
or acts in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction, the court commits an ERROR OF
JURISDICTION.(GSIS vs. Oliza 304 SCRA 421).
2.)
3.)
But there is only one branch of RTC-Bogo, can RTC-Cebu City take
jurisdiction over its cases?
No because they are different courts and jurisdiction is attached to
the court.
When the court acts without authority (error of
jurisdiction) such act would be null and void or at least
voidable, but if the court has authority but commits a
mistake in the exercise of such authority (error of
judgment) such mistake will bind unless corrected
TYPES OF JURISDICTION:
Types of jurisdiction:
1.)
ERRORS OF JURISDICTION are reviewable by the
extraordinary writ of certiorari; whereas, ERRORS OF
JUDGMENT are reviewable by appeal.
2.)
3.)
An error of judgment should be 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 or even if available, when it will not be a speedy and
adequate remedy. 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.
4.)
Based on cases tried: General Jurisdiction and
Special or Limited Jurisdiction;
Based on the nature of the cause: Original
Jurisdiction and Appellate Jurisdiction; and
Based on the nature and extent of exercise:
Exclusive Jurisdiction and Concurrent or Coordinate
Jurisdiction;
Based on situs; Territorial jurisdiction and extraterritorial 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)
Lack of jurisdiction and excess of jurisdiction
They are distinguished thus: the respondent court or tribunal acts
without jurisdiction if it does not have the legal power to
determine the case; where the respondent, being clothed with
the power to determine the case, oversteps its authority as
determined by law, it is performing a function in excess of its
jurisdiction (Vette Industrial Sales Company Inc. vs. Cheng, 509
SCRA 532).
Example: In criminal cases, the MTC has jurisdiction over offenses
where the penalty imposable does not exceed 6 years while
beyond 6 years they are triable before the RTC.
Example of excess of jurisdiction:
When the court does not conduct a pre-trial conference which is
mandatory under the rules.
If you examine the jurisdiction of the MTC, it has a limit but none
for the RTC.
Q: In whom is jurisdiction vested?
The same applies in civil cases as we shall learn.
A: Jurisdiction is vested in the court, not in the judge. A court may
be a single sala or may have several branches (multiple sala). If the
latter, 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)
2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
EXAMPLE: The RTC of Cebu City is composed of several branches –
22 all in all. But technically, there is only one court – the RTC of
Cebu City.
8
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)
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
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correct the decision of a lower court, the power of
this court is appellate. This is because it is
commenced somewhere else and it is just
reviewing the decision of the said lower court.
1.
2.
3.
Note that in certiorari petition, the action of the superior court is
not to correct but to annul. The power exercised by the superior
court is the power of control and supervision over an inferior court,
not appellate, that is, to limit the inferior court within its
jurisdiction, its authority.
4.
In your study of criminal procedure where you also studied the law
on jurisdiction, we studied the authority of the court over the cases
as determined by the imposable penalty; its authority to bind the
accused and the prosecution; its authority to grant the relief which
is either acquittal or conviction and over the place where the
offense charged is alleged to have been committed.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE
JURISDICTION
a.)
EXCLUSIVE JURISDICTION is that possessed by a
court to the exclusion of all others.
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)
The authority of the court to entertain a particular kind
of action, or
Administer a particular kind of relief depending on the
issues raised;
It may refer to the power of the court over or to bind the
parties, or
Over or to bind the property which is the subject of the
litigation.
So there are what we call elements of jurisdiction in criminal cases,
otherwise, the proceeding will be illegal. These elements are:
1.
2.
3.
Jurisdiction over the subject matter;
Jurisdiction over the person of the accused; and
Territorial jurisdiction, i.e. the case should be filed in the
place where the crime was committed.
Q: What are the elements of jurisdiction in civil cases?
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: The following:
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.
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.
In effect, these are the instances when the SC, CA and RTC
exercise concurrent jurisdiction. There can also be concurrent
jurisdiction among branches of a multiple sala court.
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.
Exclusionary Principle
The court first acquiring jurisdiction excludes all others.
Another principle that may be relevant is the policy of judicial
hierarchy.
A. JURISDICTION OVER THE SUBJECT MATTER
4. TERRITORIAL AND EXTRA-TERRITORIAL
Q: Define jurisdiction over the subject matter.
Territorial jurisdiction - exercised within the limits of the place
where the court is located.
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 belong. (Banco Español-Filipino vs.
Palanca, 37 Phil. 291)
Extra-territorial jurisdiction - exercised beyond the confines of
the territory where the court is located.
In other words, it is the jurisdiction over the nature of the action.
In criminal cases you have light, less grave and grave offenses. In
civil cases we have such actions as actions for sum of money,
actions not capable of pecuniary estimation, real and personal
actions, action in rem, action in personam etc. This is what we call
the NATURE or classification OF THE ACTION.
Examples: Writs of certiorari, prohibition and mandamus are
enforceable only within the region where the issuing court is
located; while a writ of execution can be enforced even outside
said territory.
ELEMENTS OF JURISDICTION IN CIVIL CASES
When a complaint is filed in court, the basic questions that ipso
facto are to be immediately resolved by the court on its own are:
The word jurisdiction as applied to the faculty of exercising judicial
power is used in different but related senses which are:
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a)
b)
What is the nature of the action filed?
Does the court have authority to try and determine that
class of actions to which the one before it belongs?
the court has no jurisdiction, the court by itself or motu propio has
the power to dismiss.
Q: How is the subject matter or nature (class) of the action
determined?
Jurisdiction over the “subject matter” is not to be confused with
the term “subject matter of the action”.
A: It is a settled rule that jurisdiction over the subject matter is
determined by the allegations in the complaint (Baltazar vs.
Ombudsman, 510 SCRA 74) regardless of whether or not the
plaintiff is entitled to his claims asserted therein (Gocotano vs.
Gocotano 469 SCRA 328; Cadimas vs. Carrion GR No. 180394,
Sept. 29, 2008).
Lack of jurisdiction over the subject matter is the proper ground for
a motion to dismiss. This is broad enough to include the “nature of
the action.” The term should not be confused with the terms
“subject or subject matter of the action” which refer to the
physical facts, the things real or personal, the money, lands or
chattels and the like, in relation to which the suit is prosecuted
and not the delict or wrong committed by the defendant.
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)
So if you talk about declaration of nullity of marriage the subject
matter of the action is the marriage of the parties involved not any
other contract but the nature of the action is that it is not capable
of pecuniary estimation; if it is for foreclosure of mortgage, the
thing or subject of the action is the property mortgaged, in specific
performance or rescission of contract, it is the contract involved
that is the subject matter of the action.
How do you determine then jurisdiction over the subject matter?
It is determined by facts alleged in the complaint and the law in
force at the time of the commencement of the action. (Mercado
v. Ubay 187 SCRA 719)
Q: How is jurisdiction over the subject matter or nature of the
action acquired?
This is true in criminal and civil cases.
A: Jurisdiction over the subject matter is conferred by law, which
may be either the Constitution or a statute(Tyson’s Super
Concrete, Inc. vs. Court of Appeals, 461 SCRA 435; de la Cruz vs. CA,
510 SCRA 103; Guy vs. CA, December 10, 2007), 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 of the parties, waiver, or failure to object (silence).
Examples:
So Congress plays an important role in the exercise of judicial
power, namely:
In a civil case for collection of sum of money where the complaint
alleges that the totality of the demand is P350,000.00, the case is
properly filed with the RTC even if the defendant is able to prove
that it is only P50,000.00 for jurisdiction over the subject matter is
determined by the allegations in the complaint not the defense or
evidence presented.
A case of Serious Physical Injuries was alleged in the information
filed with the CFI which was then vested with jurisdiction over this
type of cases, even if the medical certificate attached to the
records shows that the injuries are only slight which falls under the
jurisdiction of the municipal court. The CFI may convict for slight
physical injuries. Jurisdiction was determined from the allegations
in the information. (People v. Ocaya, 83 SCRA 218[1978])
1.
It creates the rights which are sought to be protected or
enforced;
2. It defines jurisdiction over the subject matter.
Both are of course in the form of substantive laws.
Exception to the rule that jurisdiction is determined by the
allegations of the complaint
The law that confers jurisdiction refers to substantive law, not a
procedural law. It likewise does not refer to an administrative order
or circular (Malaloan vs. CA, 232 SCRA 249).
The general rule is not applied with rigidity in ejectment cases in
which the defendant averred the defense of the existence of
tenancy relationship between the parties.
Q: Suppose I will file a case against you in a wrong court. Actually
what you should do is file a motion to dismiss (or in criminal cases a
motion to quash.) but you did not. 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 acquire jurisdiction over the case?
In Ignacio vs. CFI of Bulacan (42 SCRA 89), it was held, ”that while
the allegations in the complaint make out a case of forcible entry,
where tenancy is averred by way of defense and is proved to be
the real issue, the case should be dismissed for lack of jurisdiction
as the case should properly be filed with the then Court of Agrarian
Reform (now DARAB) (De la Cruz vs. CA 510 SCRA 103)
A: NO. Jurisdiction over the subject matter 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
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In Ignacio and other ejectment cases (Salandanan vs. Tizon 62 SCRA
388; Concepcion vs. CFI of Bulacan 119 SCRA 222), where tenancy
was the defense, the court went beyond the allegations of the
complaint in determining jurisdiction over the subject matter and
required the presentation of evidence to prove or disprove the
defense of tenancy. After finding the real issue to be tenancy, the
cases were dismissed for lack of jurisdiction.
such that all its indispensable elements must be established, to
wit:
(1)
(2)
(3)
(4)
(5)
(6)
In Salmorin vs. Zaldivar, GR No. 169691, July 23, 2008, the plaintiff
entered into an agreement with the defendant designating him as
administrator of a lot with a monthly salary of P150. The defendant
allegedly did not comply with the terms of the agreement when he
failed to till the vacant areas as agreed. This compelled the plaintiff
to terminate his services and eject him from the lot. When the
defendant refused to vacate the property, the plaintiff filed a
complaint for unlawful detainer against him in the MCTC.
The parties are the landowner and tenant;
The subject is agricultural land;
There is consent by the landowner;
The purpose is agricultural production;
There is personal cultivation; and
There is sharing of the harvests.
All these requisites are necessary to create tenancy relationship,
and the absence of one or more requisites will not make the
alleged tenant a de facto tenant. All these elements must concur.
It is not enough that they are alleged.
The statement that jurisdiction is conferred by substantive law is
not accurate because only jurisdiction over the subject matter is
conferred by substantive law. Jurisdiction over the parties, issues
and res is governed by procedural laws.
In his Answer, the defendant alleged the existence of a tenancy
relationship between him and the plaintiff. Thus, he claimed that
the case was an agrarian matter over which the MCTC had no
jurisdiction.
No Retroactive Effect of Law on Jurisdiction
Jurisdiction being a matter of substantive law, the established
rule is that statute in force at the time of the commencement of
the action determines jurisdiction – RA 7691 has no retroactive
application. (Yu Oh v. CA GR No. 125297, June 6, 2003)
The Court found that the plaintiff alleged the following:
(1) That he possessed the subject lot;
(2) That he instituted the defendant as administrator
thereof;
(3) That the defendant failed to administer the subject lot by
not having the vacant areas thereof planted;
(4) That for the defendant’s failure to administer the subject
lot, his services as administrator was terminated;
(5) That he advised defendant through registered mail to
leave or vacate the subject lot; and
(6) That the defendant refused to vacate the subject lot
without justification.
This follows the general rule on application of laws.
Q: Why is jurisdiction substantive not procedural?
A: Because the law vests, defines, regulates, authority or power.
Doctrine of Continuity of jurisdiction (Adherence of Jurisdiction)
Under this rule, jurisdiction, once it attaches cannot be ousted by
the happening of subsequent events although of such a character
which should have prevented jurisdiction from attaching in the
first instance (Ramos vs. Central Bank of the Phil. 41 SCRA 586
[1971]).
The Court ruled that from its material allegations, the complaint
concerned the unlawful detainer by the defendant of the subject
lot, a matter which is properly within the jurisdiction of the regular
courts.
The court, once jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case (De La Rosa vs.
Roldan, 501 SCRA 34).
The allegation of tenancy in the defendant’s answer did not
automatically deprive the MCTC of its jurisdiction because the
jurisdiction of the court over the nature of the action and the
subject matter thereof cannot be made to depend upon the
defenses set up in the court or upon a motion to dismiss.
Otherwise, the Court ruled, the question of jurisdiction would
depend almost entirely on the defendant. Accordingly, the MCTC
does not lose its jurisdiction over an ejectment case by the simple
expedient of a party raising as defense therein the alleged
existence of a tenancy relationship between the parties. It is
however, the duty of the court to receive evidence to determine
the allegations of tenancy. If after hearing, tenancy had in fact
been shown to be the real issue, the court should dismiss the case
for lack of jurisdiction.
As a consequence of this principle, jurisdiction is not affected by a
new law placing a proceeding under the jurisdiction of another
tribunal except when otherwise provided in the statute or if the
statute is clearly intended to apply to actions pending even before
its enactment (People vs. Cawaling, 293 SCRA 267)
Thus, when RA No. 7691 expanded the jurisdiction of the first level
courts, said courts acquired jurisdiction over cases that under BP
129 were originally within the jurisdiction of the RTC. But cases
pending already with the RTC at the time of the effectivity of the
law were not affected by such new law unless the parties by
agreement, pursuant to Sec. 7 therein, agreed to transfer the
pending cases from the RTC to the lower courts especially those
which have reached the pre-trial stage.
The Court further stressed that a tenancy relationship cannot be
presumed. There must be evidence to prove the tenancy relations
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In an action for ejectment, if the defendant voluntarily surrenders
the premises subject of the action to the plaintiff, the surrender of
the property does not divest the court of jurisdiction (Pamintuan
vs. Tiglao 53 Phil. 1)
Under this doctrine, courts will not resolve a controversy involving
a question which is within its jurisdiction and also of an
administrative tribunal, especially where the question demands
the exercise of sound administrative discretion requiring the
special knowledge and experience of said tribunal in determining
technical and intricate matters of fact. (Villaflor vs. CA, GR No.
95694, Oct. 8, 1997).
If the court has jurisdiction to act on a motion at the time it was
filed, that jurisdiction to resolve the motion continues until the
matter is resolved and is not lost by the subsequent filing of a
notice of appeal. (Asmala vs. Comelec, 289 SCRA 746)
Where a case is such that its determination requires the expertise,
specialized skills and knowledge of the proper administrative
bodies because technical matters or intricate questions of fact are
involved, then relief must be obtained in an administrative
proceeding before a remedy will be supplied by the courts even
though the matter is within the proper jurisdiction of a court. This
is the doctrine of primary jurisdiction. It applies “where a claim is
originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special
competence of an administrative body, in such case, the judicial
process is suspended pending referral of such issues to the
administrative body for its view.” (US v. Western Pacific Railroad
Co., 352 US 59; Industrial Enterprises, Inc. v. CA, 184 SCRA 426)
The trial court did not lose jurisdiction over the case involving a
public official by the mere fact that said official ceased to be in
office during the pendency of the case (Flores vs. Sumaljag, 290
SCRA 568). Also, the jurisdiction that the court had at the time of
the filing of the complaint is not lost by the mere fact that the
respondent judge ceased to be in office during the pendency of the
case (Victory Liner vs. Bellosillo, 425 SCRA 79).
Even the finality of the judgment does not totally deprive the
court of jurisdiction over the case. What the court loses if the
power to amend, modify or alter the judgment. Even after the
judgment has become final, the court retains jurisdiction to
enforce and execute it (Echegaray vs. Sec. of Justice, 301 SCRA 96;
Republic vs. Atlas Farms, 345 SCRA 296).
Example: Damages is claimed arising from the collision between
the claimant's vessel and that of another. Such claim can of course
be determined by the courts. But in order to enforce such claim
before the courts, there must be a determination of which vessel is
at fault. This is issue is placed within the special special
competence of the Maritime Industry Authority or Philippine Coast
Guard which administrative body regulates sea travel. Under this
situation courts should defer to the jurisdiction of such
administrative body for it has the competence to determine which
vessel is at fault. Its finding then can serve as basis or premise for
the legal consequences to be then defined by the court.
Exception to the Rule of Adherence/Continuity of Jurisdiction
1.
2.
3.
When there is an express provision in the statute on
retroactive application; or
The statute is clearly intended to apply to actions
pending before its enactment; or
The statute is curative. This means that even if
originally there was no jurisdiction, the lack of
jurisdiction may be cured by the issuance of the
amendatory decree which is in the nature of a curative
statute with retrospective application to a pending
proceeding and cures that lack of jurisdiction. Thus, in a
case, while the CFI has no jurisdiction over a complaint
for damages arising from the dismissal of a radio station
manager which was filed on August 2, 1976, PD 1367
vesting the court with jurisdiction over such type of
cases cured the lack of jurisdiction of the trial court at
the time the instant claim was filed before it. (Garcia vs.
Martinez 90 SCRA 331 [1979])
In Far East Conference v. US 342 US 570 (1952) the Court defined
the primary jurisdiction doctrine as:
A principle, now firmly established, that in cases raising issues of
fact not within the conventional expertise of judges or cases
requiring the exercise of administrative discretion, agencies
created by Congress for regulating the subject matter should not
be passed over. This is even though the facts after they have been
appraised by specialized competence serve as a premise for legal
consequences to be judicially defined. Uniformity and consistency
in the regulation of business entrusted to a particular agency are
secured, and the limited functions of review by the judiciary are
more rationally exercised, by preliminary resort for ascertaining
and interpreting the circumstances underlying legal issues to
agencies that are better equipped than courts by specialization,
by insight gained through experience, and by more flexible
procedure.
Read also Atlas Fertilizer vs. Hon. Exaltacion Navarro, 149
SCRA 432)
How Jurisdiction Over the Subject Matter is Acquired By the Court
1.
2.
It is conferred by law applicable at the time of the
commencement of the action; and
Jurisdiction must be properly invoked by filing the
complaint or information.
DOCTRINE OF PRIMARY JURISDICTION
Since the inception of the doctrine courts have resisted creating
any fixed rules or formulas for its application, “in every case the
question is whether the reasons for the existence of the doctrine
are present and whether the purposes it serves will be aided by its
Statement of the Doctrine
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application in the particular litigation.” As the origin and
evolution of the primary jurisdiction doctrine demonstrate, the
reasons for the existence and the purposes it serves are two-fold:
the desire for the uniformity and the reliance on administrative
expertise. Thus, in determining whether to apply the primary
jurisdiction doctrine, we must examine whether doing so would
serve either of these purposes.
Objections to jurisdiction over the subject matter
The court may on its own initiative object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly recognized
right to determine its own jurisdiction (Fabian vs. Desierto, 295
SCRA 470). “When it appears from the pleadings or evidence on
record that the court has no jurisdiction over the subject
matter,…the court shall dismiss the same” (Sec. 1, Rule 9, Rules of
Court)
These same tests were applied by our courts in the determination
of whether or not to apply the doctrine of primary jurisdiction.
Spouses Jose Abejo and Aurora Abejo, et a., v. Hon. Rafael de la
Cruz, etc. et al., 149 SCRA 654, citing Pambujan Sur United Mine
Workers v. Samar Mining Co., In., 94 Phil. 932, 941 [1954])
The earliest opportunity of a party to raise the issue of jurisdiction
is in a motion to dismiss filed before the filing or service of an
answer. Lack of jurisdiction over the subject matter is a ground for
a motion to dismiss (Sec. 1(b), Rule 16, Rules of Court). If no motion
is filed, the defense of lack of jurisdiction may be raised as an
affirmative defense in the answer (Sec. 6, Rule 16)
See GMA Network, Inc., v. ABS-CBN Broadcasting Corporation, G.R.
No. 160703, September 23, 2005.
In Paat v. CA, 266 SCRA 167 the Court said that enforcement of
forestry laws, rules and regulations and the protection,
development and management of forest lands fall within the
primary and special responsibilities of the DENR. By the very nature
of the functions, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a controversy which
is well within its jurisdiction. The assumption therefore of the
replevin suit by the trial court filed by the private respondents
constitutes an unjustified encroachment into the domain of the
administrative agency’s prerogative.
Under the Omnibus Motion rule, a motion attacking a pleading like
a motion to dismiss, shall include all grounds then available, and all
objections not so included shall be deemed waived (Sec. 8 Rule 15).
The defense of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke the same in
a motion to dismiss already filed. Even if a motion to dismiss was
filed and the issue of jurisdiction was not raised therein, a party
may, when he files an answer, raise the lack of jurisdiction as an
affirmative defense because this defense is not barred under the
omnibus motion rule
Quasi-judicial bodies like the CSC are better equipped in handling
cases involving the employment status of employees of those in
the civil service since it is within the field of its expertise. (Paloma
v. Mora GR No. 157783, Sept. 23, 2005)
Thus, the prevailing rule is that jurisdiction over the subject
matter may be raised at any stage of the proceedings, even for
the first time on appeal (Calimlim vs. Ramirez, 118 SCRA 399;
Francel Realty Corporation vs. Sycip 469 SCRA 424).
Doctrine of Ancillary Jurisdiction
The issue is so basic that it may be raised at any stage of the
proceedings, even on appeal. In fact, courts may take cognizance
of the issue even if not raised by the parties. There is thus no
reason to preclude the Court of Appeals, for example, from ruling
on this issue even if the same has not yet been resolved by the
trial court below (Asia International Auctioneers, Inc. vs. GR No.
163445, Dec. 18, 2007).
It involves the inherent or implied power of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate the
manner in which a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be heard, direct the
disposition of money deposited incourt in the course of the
proceedings, appoint a receiver an grant an injunction,
attachment or garnishment.
Lack of jurisdiction is one of those excepted grounds where the
court may dismiss a claim or a case at any time when it appears
from the pleadings or the evidence on record that any of those
ground exists, even if they were not raised in the answer or in a
motion to dismiss. That the issue of lack of jurisdiction was raised
only by the defendants in their memorandum filed before the trial
court did not render them in estoppel (Vda. De Barrera vs. Heirs of
Vicente Legaspi GR No. 174346 Sept. 12, 2008).
Doctrine of Judicial Stability or Non-Interference
GR: No court has the authority to interfere by injunction with the
judgment of another court of coordinate jurisdiction or to pass
upon or scrutinize and much less declare as unjust a judgment of
another court. (Industrial Enterprises, Inc. vs. CA GR No. 88550,
April 18, 1990)
When the court dismisses the complaint for lack of jurisdiction over
the subject matter, should it refer or forward the case to another
court with the proper jurisdiction? It is submitted that the court
should not do so. Its only authority is to dismiss the complaint and
not to make any other order.
Exc: The doctrine of judicial stability does not apply where a third
party claimant is involved. (Santos vs. Bayhon, GR No. 88643, July
23, 1991).
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Objections to Jurisdiction and Estoppel by Laches
belatedly objecting to the court’s jurisdiction in the event that the
judgment or order subsequently rendered is adverse to him. (Alday
v. FGU Insurance Corporation, 350 SCRA 113, 120 [2001]).
Estoppel means you cannot disown your act by which you have
misled another while laches means abandonment of a right for
failure to assert it for a long time.
In general sense, estoppel by laches is failure or neglect for an
unreasonable and unexplained length of time to do what ought to
have been done earlier. The failure to act warrants the
presumption that one has abandoned his right or that he had
acquiesced to the correctness and fairness of what has been
resolved. The doctrine of estoppel is based on public policy
intended to discourage stale claims. Estoppel is not a question of
time unlike the statute of limitations. It is rather based on the
inequity or unfairness of permitting a claim to be asserted at a
time such claim is presumed to have been abandoned. (Sps.
Guillermo Agbada and Maxima Agbada v. Inter-Urban Developers,
Inc. GR 144029, Sept. 19, 2002)
GR: You can raise your objection on jurisdiction over the subject
matter even for the first time on appeal.
The ONLY exception is when there is estoppel by laches, as laid
down in TIJAM vs. SIBONGHANOY ( Tijam vs. Sibonghanoy 23
SCRA 29, April 15, 1968).
In this case, a complaint for collection cognizable by the inferior
court was filed in the CFI. The jurisdiction was not questioned. The
CFI issued a writ of preliminary attachment but was dissolved when
the defendant filed a counterbond thru a surety. After trial, the
court rendered a judgment against the defendants. That decision
became final and a motion for execution was filed and granted.
When implemented, the writ of execution was unsatisfied so the
plaintiff moved that the writ be executed against the counterbond.
The surety filed an opposition and sought to be relieved from
liability. The motion was denied on ground that the surety was not
notified. Plaintiff then filed a second motion for execution against
the counterbond notifying the surety this time. Since the surety
failed to oppose the motion was granted. The surety moved to
quash the writ against the counterbond but was denied. The surety
went to the Court of Appeals which affirmed the order. The surety
filed a motion for extension of time to file a motion to for
reconsideration which the CA granted. However, instead of filing a
motion for reconsideration the surety filed this time a motion to
dismiss on ground that the CFI did not have jurisdiction over the
subject matter. Instead of deciding the CA certified the case to the
Supreme Court because the issue raised is purely legal.
The fact pattern common among those cases wherein the Court
invoked estoppel to prevent a party from questioning jurisdiction
is a party’s active participation in all stages of a case, including
invoking the authority of the court in seeking affirmative relief
and questioning the court’s jurisdiction only after receiving a
ruling or decision adverse to his case for the purpose of annulling
everything done in the trial in which he has actively participated.
As clearly pointed out in Lao vs. Republic 479 SCRA 439: “A party
who has invoked the jurisdiction of the court over a particular
matter to secure affirmative relief cannot be permitted to
afterwards deny the same jurisdiction to escape liability.”
The Supreme Court frowns upon the undesirable practice of
submitting one’s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of jurisdiction if
it is not (Bank of the Philippine Islands vs. ALS Management and
Development Corporation, 427 SCRA 564).
The Court emphatically declared: “The facts of the case show that
from the time the Surety became a quasi-party on July 31, 1948, it
could have raised the question of the lack of jurisdiction of the
Court of First Instance of Cebu to take cognizance of the present
action by reason of the sum of money involved which, according to
the law then in force, was within the original exclusive jurisdiction
of inferior courts. It failed to do so. Instead, at several stages of the
proceedings, in the court a quo as well as in the CA, it invoked the
jurisdiction of said courts to obtain affirmative reliefs and
submitted its case for a final adjudication on the merits. It was only
after an adverse decision was rendered by the CA that it finally
woke up to raise the question of jurisdiction. Were we to sanction
such conduct on its part we would in effect be declaring as useless
all the proceedings had in the present case since it was
commenced on July 19, 1948 and compel the judgment creditors to
go up their Calvary once more. The inequity and unfairness of this
is not only patent but revolting.”
Bar by Estoppel Is An Exception and Not the General Rule
The doctrine laid down in Tijam is the exception to, and not the
general rule (Pangilinan v. CA, 321 SCRA 51, 59 [1999]).
Estoppel by laches may be invoked to bar the issue of jurisdiction
only in cases in which the factual milieu is analogous to that of
Tijam.
In Tijam, the defense of lack of jurisdiction was raised for the first
time in a motion to dismiss filed by the Surety almost fifteen (15)
years after the questioned ruling had been rendered. At several
stages of the proceedings, in the court a quo as well as in the Court
of Appeals, the Surety invoked the jurisdiction of the said courts to
obtain affirmative relief and submitted its case for final
adjudication on the merits. It was only when the adverse decision
was rendered by the Court of Appeals that it finally woke up to
raise the question of jurisdiction (Regalado vs. Go, GR No. 167988,
February6, 2007)
In other words, while jurisdiction as a rule, may be raised at any
stage of the proceedings (Panganiban vs. CA, 321SCRA 51, 59
[1999]), a party may be stopped from raising such questions if he
has actively taken part in the very proceedings which he questions,
Inspite of Tijam and subsequent cases which invoked it, the rule
that the lack of jurisdiction over the subject matter may be raised
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at any stage of the proceedings, even on appeal, still remains the
prevailing rule and Tijam should be confined only to situations
prevailing in a particular case viewed in the light of the special
circumstances surrounding it.
Q: Should the complaint be dismissed on said ground? Why?
A: No. It is a recognized procedural rule that jurisdiction over the
plaintiff is acquired by his/her filing of the complaint in court. By
filing the complaint through his/her counsel, X invoked the
jurisdiction of the court over his person.
JURISDICTION OVER THE PERSON (PARTIES)
Q: Define jurisdiction over the person.
As to Defendant
A: Jurisdiction over the person is the power to render a personal
judgment against a party to an action or proceeding through the
service of process or by voluntary appearance of a party during
the progress of a cause. (Banco Español-Filipino vs. Palanca, 37
Phil. 291)
Jurisdiction over the person of the defendant is required only in
action in personam (Asiavest Limited vs. CA, 296 SCRA 539).
Jurisdiction over the person of the defendant is not a prerequisite
in an action in rem and quasi in rem (Gomez vs. CA 425 SCRA 98;
Biaco vs. Phil. Countryside Rural Bank 515 SCRA 106.
It is the power of the court to bring before it persons to be
affected by the judgment so as to give him an opportunity to be
heard, and to render a judgment binding upon his person.
(21C.J.S., Courts, Sec. 11, 1990)
Jurisdiction Over the Person of the Defendant in Actions in
Personam, How Acquired
Jurisdiction over the person of the defendant is obtained either by
a valid service of summons upon him or by his/her voluntary
submission to the court’s authority. (Ang Ping vs. CA, 310 SCRA
343, 349 [1999]; Davao Light vs. CA)
Q: In criminal cases, how does the court acquire jurisdiction over
the person of the accused?
A: By having him
The service of summons is intended to give official notice to the
defendant or respondent that an action has been commenced
against him. He is thus put on guard as to the demands of the
plaintiff as stated in the complaint. The service of summons is an
important element in the operation of a court’s jurisdiction upon
a party to a suit because it is the means by which the court
acquires jurisdiction over his person. Without service of
summons, or when the service is improper, the trial and the
judgment being in violation of due process, are both null and
void. (Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997])
(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?
A: Of course not, because the court has not acquired jurisdiction
over his person. There must first be an arrest or surrender. The
accused can post bail and be released but if he jumps bail there can
be trial in absentia. There will be a valid decision because the court
has already acquired jurisdiction. Of course we cannot enforce the
decision until we catch him.
The mode of acquisition of jurisdiction over the plaintiff and the
defendant applies to both ordinary and special civil actions like
mandamus or unlawful detainer cases (Bar 1994).
How does the court acquire jurisdiction over the person?
First Instance: UPON SERVICE ON HIM OF COERCIVE
In civil cases, it is also a must that the court acquires jurisdiction
over the person of the parties. The manner by which the court
acquires jurisdiction over the parties depends on whether the
party is the plaintiff or the defendant.
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.
As to Plaintiff
Jurisdiction over the person of the plaintiff is acquired by his/her
filing of the complaint or petition. By doing so, he submits
himself/herself to the jurisdiction of the court. (Davao Light &
Power Co. Inc. v. CA, 204 SCRA 343, 348 [1991])
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.
Example: X, a resident of Melbourne, Australia, presented a
complaint against Y, a resident of Manila, before the CFI of Manila
for accounting and damages. X never came to the Philippines to file
the suit and is only represented in this case by counsel. Y files a
motion to dismiss the complaint on the ground that the court
acquired no jurisdiction over the person of X.
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 and service of a
warrant of arrest. The warrant cannot have its effect even if it was
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issued, if the same had not been served, i.e. by effecting the arrest
of the accused by virtue of a warrant.
affirmative relief except when the relief is for the purpose of
objecting to the jurisdiction of the court over the person of the
defendant.
Q: In criminal cases, how can the warrant of arrest be effected?
Certain actions which could be construed as voluntary appearance
are:
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.
1.)
2.)
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
3.)
JURISDICTION OF THE COURT
4.)
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.
5.)
6.)
In civil cases, it is the voluntary submission of the defendant to the
jurisdiction of the court.
when the defendant’s counsel files the corresponding
pleading thereon;
when the defendant files a motion for reconsideration
of the judgment by default;
when the defendant files a petition to set aside the
judgment of default;
when the defendant and plaintiff jointly submit a
compromise agreement for the approval of the court;
when the defendant files an answer to the contempt
charge;
when the defendant files a petition for certiorari
without questioning the court’s jurisdiction over his
person (Navale v. CA, 253 SCRA 705, 709, 710, 709-712
[1996])
Objections to jurisdiction over the person of the defendant
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?
An objection to the jurisdiction over the person of the defendant
may be raised as a ground for a motion to dismiss (Sec. 1(a) Rule
16). If no motion to dismiss has been filed, the objection may be
pleaded as an affirmative defense in the answer (Sec. 6 Rule 16).
If a motion to dismiss has been filed, the objection to the lack of
jurisdiction over the person of the defendant must be pleaded in
the same motion where such ground is available at the time the
motion is filed, otherwise it is deemed waived pursuant to the
omnibus motion rule. The defense of lack of jurisdiction over the
person of the defendant is not one of those defenses which are
not deemed waived if not raised in the motion to dismiss. Only
lack of jurisdiction over the subject matter, litis pendentia, res
judicata and prescription are not waived (Sec. 1 Rule 9 in relation
to Sec. 8 Rule 15).
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.
Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant
Q: Distinguish jurisdiction over the subject matter from jurisdiction
over the person of the defendant?
Under the former procedure, if the defendant raises the objection
of lack of jurisdiction over his person in a motion to dismiss, the
motion must rely only on that particular ground. If the defendant
appears in court, objects to its jurisdiction over his person and at
the same time alleges other grounds, the appearance would be
deemed a general appearance which was in effect a voluntary
submission to the jurisdiction of the court (Republic vs. Kerr 18
SCRA 207; WANG Laboratories VS. Mendoza 156 SCRA 44).
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)
Voluntary Appearance as Voluntary Submission To Court’s
Jurisdiction
The above rule was re-examined in La Naval Drug Corporation vs.
CA 236 SCRA 78). The pronouncements in said case are now
embodied in Sec. 20 of Rule 14 which provides: ****The inclusion
in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed
a voluntary appearance.
Voluntary appearance must be the kind that constitutes voluntary
submission to the court’s jurisdiction. Voluntary submission to the
court’s jurisdiction cannot be inferred from the defendant’s mere
knowledge or existence of a case against him/her. In general, the
form of appearance that would be construed as a voluntary
submission to the court’s jurisdiction is an appearance that seeks
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C. JURISDICTION OVER THE RES
Acquisition of jurisdiction over the res by actual seizure is
exemplified by an attachment proceeding where the property is
seized at the commencement of the action or at some subsequent
stage in the action. It is also acquired through a legal provision
which authorizes the court to exercise authority over a property
or subject matter such as suits involving a person’s status or
property located in the Philippines in actions in rem or quasi in
rem. (Banco Espanol Filipino vs. Palanca 37 Phil. 921, 927 [1918];
Perkins v. Dizon; Sec. 15, Rule 14, Rules of Court.)
RES is the Latin word for “thing.” It is applied to an object, subject
matter (not nature of the action), status, considered as the
defendant in the action or as the object against which, directly,
proceedings are taken. (Black’s 5th Ed., 1172)
Q: Define jurisdiction over the res.
A: Jurisdiction over the res is the power or authority of the court
over the thing or property under litigation. (Perkins v. Dizon, 69
Phil. 186, 190 [1939])
In Land Registration cases or probate proceedings, jurisdiction is
acquired by compliance with procedural requisites, such as
publication.
It is the power to bind the “thing”.
In a petition for change of name, the title of the petition must be
complete by including the name sought to be adopted; otherwise,
the court acquires no jurisdiction over the proceedings. (Telmo vs.
Republic, 73 SCRA 29 (1976).
How is it acquired?
It is acquired either by the (a) the seizure of the property under
legal process whereby it is brought into actual or constructive
custody of the court’ or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective. (Macahilig vs. Heirs of Grace M. Magalit, GR No.
141423, Nov. 15, 2000)
D. JURISDICTION OVER THE ISSUES
Meaning of Issue
An issue is a disputed point or question to which parties to an
action have narrowed down their several allegations and upon
which they are desirous of obtaining a decision. (Black’s 5th Ed.,
745 citing Muller v. Muller, 235 Cal App. 2nd 341, 45 Cal. Rptr 182,
184)
Q: A files a case for recovery of ownership against B over a piece of
land. What is the res of the case?
A: The piece of land is the res of the case.
What is the nature of the action?
How Jurisdiction Over The Issues Is Conferred and Determined
To recover ownership of real property or real action.
Q: However, res may not be tangible. For example, X is an
illegitimate child. She wants to be acknowledged by her father.
Thus, she filed a case against her father for compulsory recognition.
In order to determine whether or not a court has jurisdiction over
the issue or issues of the case, one must examine the pleadings.
Q: Define jurisdiction over the issues.
What is the res?
A: Jurisdiction over the issue is the authority to try and decide the
issues raised in the pleadings of the parties. (Reyes vs. Diaz, 73
Phil. 484)
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?
Q: What are pleadings?
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.
A: 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, pleadings are written statements of the respective
positions of the parties, namely, the claims for the plaintiff and
defenses for the defendant.
In the example of action for compulsory recognition, even if the
defendant is a non-resident who is out of the country the object of
litigation is status 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 the thing or object or status
against which or in relation to which the judgment can be enforced.
EXAMPLE: X files a case for collection of sum of money against Y.
The pleading that X will file will contain the written statements of
his claim. He will narrate there for instance that Y borrowed money
from him promising to pay it on a day certain but when it became
due no payment was made despite demands so he suffered actual
loss or damage aside from moral damage.
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By way of response, X will file his position in writing stating his
defenses like denying the loan; the promissory note is a forgery or
admitting the loan but claiming that it had already been paid or the
action has prescribed. This written statement of his position
containing his defense or defenses is a pleading called an answer.
In the answer Y can also allege claims, if he has any against the
plaintiff like the case is merely intended to harass him for which
reason he suffered damages. This is called a counterclaim, another
pleading and X can in turn file an answer to the counterclaim where
he will state his defense/s as regards the claim contained in the
counterclaim.
conferred by law and cannot be subject to the agreement of the
parties. (Vda de Victoria v. CA, GR No. 147550, Jan. 26, 2005)
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.)
Based on their allegations and counter-allegations the court will
know what issues are to be resolved.
Jurisdiction over the subject matter is acquired
upon filing of the complaint, while
Jurisdiction over the issues of the case is
acquiredupon filing of the answer which joins the
issues involved in the case.
Q: So, if X says that Y borrowed money, and never paid him,
while Y, in answer states that he did borrow but already paid
it, what issue is being presented to be resolved by the court?
When An Issue Arises Even If Not Raised In the Pleadings
A: The issue is, whether the obligation is still existing or is it
already extinguished by payment. So that is how the court
will know what it will try in this case.
Although it is a rule that jurisdiction over the issue is to be
determined by the pleadings of the parties, an issue may arise in a
case without it being raised in the pleadings. This happens when
the parties try an issue with their consent. Under Sec. 5, Rule 10 of
the Rules of Court, when issues not raised by the pleadings are
tried with the express or the implied consent of the parties, they
shall be treated in all respects, as if they had been raised in the
pleadings. Thus, if evidence on a claim for salary differential is not
objected to, the Labor Arbiter correctly considered the evidence
even if the claim is not mentioned in the complaint. (Cindy and
Lynsy Garment v. NLRC, 284 SCRA 38, 45 [1998])
Q: Let us suppose that after the trial, the court said in its decision
that the obligation has been extinguished by condonation. Will that
bind?
A: No, because the parties did not raise condonation as the issue.
So the court decided that issue over which it never acquired
jurisdiction.
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.
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 when the accused enters a plea of not
guilty or pleads guilty but seeks to prove a mitigating circumstance.
Jurisdiction over the issue is, therefore, conferred and determined
by the pleadings of the parties.
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.
Jurisdiction over the issues may also be determined and conferred
by stipulation of the parties as when in the pre-trial, the parties
enter into stipulation of facts and documents or enter into an
agreement simplifying the issues of the case (Sec. 2 Rule 18)
JURISDICTION OVER THE SUBJECT MATTER
Jurisdiction over the issues may also be conferred by waiver or
failure to object to the presentation of evidence on a matter not
raised in the pleadings. Here the parties try with their express or
implied consent issues not raised by the pleadings. The issues
tried shall be treated in all respects as if they had been raised in
the pleadings (Sec. 5 Rule 10).
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.
Jurisdiction Over the Subject Matter Distinguished from
Jurisdiction Over the Issues
Composition
Jurisdiction over the issues is conferred by the pleadings and by the
express (stipulation) or implied (failure to object to evidence)
consent of the parties because an issue not duly pleaded may be
validly tried and decided by the court as long as there is no
objection from the parties. Jurisdiction over the subject matter is
It is composed of the Chief Justice and 14 Associate Justices.
The Constitution ordains that the President appoints the members
of the SC and judges of lower courts from a list of at least three
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nominees prepared by the JBC for every vacancy and requires the
President to issue appointments, for lower courts, within 90 days
from submission of the list (Art. VIII, Sec. 9) and to fill the vacancy
of the SC within 90 days from its occurrence. (Art. VIII Sec. 4(1). All
such appointments need no confirmation. (Sec. 9)
c.)
d.)
e.)
f.)
Divisions and En Banc
The SC sits either en banc or in divisions of 3, 5 or 7 members. At
present, it has 3 divisions of 5 members each.
g.)
A decision or resolution of a division, when concurred in by a
majority of its members who actually took part in the deliberations
on the issues in a case and voted thereon, and in no case without
the concurrence of at least 3 of such members, is a decision or
resolution of the SC. (Sec. 4(3) Art. VIII Constitution).
h.)
The Court en banc is not an appellate court to which decisions or
resolutions of a division may be appealed. (Circular No. 2-89)
i.)
No doctrine or principle of law laid down by the court in a decision
rendered en banc or in division may be modified or reversed except
by the court sitting en banc. (Sec. 4(3))
j.)
Principal Functions of the Supreme Court
a.
b.
c.
How a Case Before a Division is Referred to the Court en banc
At any time after a Division takes cognizance of a case and before a
judgment or resolution therein rendered becomes final and
executor, the Division may refer the case en consulta to the court
en banc which, after consideration of the reasons of the division for
such referral, may return the case to the Division or accept the case
for decision or resolution.
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.
A resolution of the Division denying a party’s motion for referral to
the Court en banc of any division shall be final and not appealable
to the Court en banc.
Note that the foregoing provision does not define the
original jurisdiction of the SC as exclusive, hence it can
be concurrent or exclusive.
When a decision or resolution is referred by a division to the Court
en banc, the latter may in the absence of sufficiently important
reasons decline to take cognizance of the same, in which case, the
decision or resolution shall be returned to the referring Division.
(Circular No. 2-89 effective March 1, 1989)
When is it exclusive and when concurrent?
Original Exclusive
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:
En Banc Cases
In a resolution dated February 23, 1984, the following are
considered en banc cases:
b.)
Adjudication (Judicial Power)
Administration or Disciplinary power
Rule-making (Rule-making Power)
ORIGINAL JURISDICTION OF THE SUPREME COURT
Cases assigned to a Division including motions for reconsideration
which in the opinion of at least 3 members merit the attention of
the court en banc and are accepted by the majority vote of the
actual members of the court en banc may be considered as en banc
cases.
a.)
Cases raising novel questions of law;
Cases affecting ambassadors, public ministers and
consuls;
Cases where a doctrine or principle laid down by the
court en banc or in division may be modified or
reversed;
Cases assigned to a division including motions for
reconsideration which in the opinion of at least 3
members merit the attention of the Court en banc
and are acceptable to a majority vote of the actual
membership of the Court en banc;
All other cases as the Court en banc by a majority of its
actual membership may deem of sufficient
importance to merit its attention;
Cases where the penalty to be imposed is the dismissal
of a judge, officer, or employee of the SC,
disbarment of a lawyer, or suspension of any of
them for a period of more than one year or a fine of
P10,000.00, or both;
Cases involving decisions, resolutions or orders of the
Sandiganbayan, Comelec, COA, or Military
Tribunals;
Habeas corpus against government or military officials;
a)
b)
c)
d)
e)
Cases in which the constitutionality or validity of any
treaty, executive agreement, law, ordinance or
executive order or regulation is in question;
Criminal cases in which the decision imposes the death
penalty;
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the CA (Judiciary Act of 1948);
the COMELEC (Art. IX Sec. 7, 1987 Constitution);
COA (Art. IX Sec. 7 1987 Constitution; and
Sandiganbayan (PD No. 1606);
Court of Tax Appeals because it has now the same rank as
the CA by virtue of RA 9282.
CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
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.
Original Concurrent
A.
With CA – T he cases where its original jurisdiction is
CONCURRENT with the CA are: petitions for the issuance of
writs of certiorari, prohibition, mandamus against the
following:
the CSC (RA No. 7902);
Central Board of Assessment Appeals (PD No. 464; BP Blg.
129; RA No. 7902);
NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494;
RA No. 7902) or the Secretary of Labor under the Labor
Code.
Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Hinog vs. Melicor, 455 SCRA 460)
Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
b) All cases involving the legality of any
tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
B.
CONCURRENT with the RTC – are those actions affecting
ambassadors and other public ministers and consuls (Sec.
21[2] BP Blg 129; Art. VIII Sec. 5 1987 Constitution).
e) All cases in which an error or question
of law is involved.
C.
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
(Secs. 9[1], 21[2]2, BP Blg. 129; Art. VIII Sec. 5, 1987
Constitution).
a.
b.
c.
d.
e.
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.
If (a), (b), and (c) also involve questions
of facts or mixed questions of fact and
of law, the aggrieved party shall appeal
to the Court of Appeals; and its final
judgment may be appealed to the
Supreme Court. (Subpar 4, Third Par.
Sec. 17, Judiciary Act or RA 544)
For example, a petition for mandamus against the MTC of
Cebu 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)
D.
E.
a)
CONCURRENT WITH CA, SANDIGANBAYAN and RTC – are
petitions for issuance of writ of Amparo and petitions for
Habeas Data, where the action involves public data or
government office.
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, which has the power, declares the law as
unconstitutional, 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.
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
i.e. only in connection with a case appealed to the
Sandiganbayan.
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.
This concurrent jurisdiction is subject to the doctrine of hierarchy
of courts (Liga ng mga Barangay National vs. Atienza 420 SCRA 562;
Lacson Hermanas Inc. vs. Heirs of Ignacio 462 SCRA 290).
c)
APPELLATE JURISDICTION OF THE SUPREME COURT
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 issue, it must go to the SC. When the issue is purely
jurisdiction, the SC shall have exclusive appellate jurisdiction.
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:
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
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UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
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)
“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.”
All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
We discussed this in Criminal Procedure.
e)
All cases in which only an error or question of law
is involved.
The COMELEC, COA and the CSC act also as courts of justice. They
have powers to decide certain cases within their jurisdiction.
Election cases are covered by the COMELEC, claims against the
government, by COA and eligibility or removal from government
service of an appointive employee, by CSC.
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.
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.
QUESTIONS OF LAW and QUESTIONS OF FACT
There is a question of law when the doubt or difference arises as to
what the law is on a certain set of facts. There is a question of fact
when the doubt or difference arises as to the truth or falsehood of
the alleged facts (Sps. Santos vs. CA 337 SCRA 67).
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
Example: Where the question is whether or not the debtor has
paid the debt, the issue is one of fact. Where the question is
whether or not the manner of payment is of the type which
produces the legal effect of extinguishing the obligation, the issue
becomes one of law. Also, when under the set of facts the issue is
whether or not the law on double sales applies, there is a question
of law.
What is the basis for Congress to pass such a law where a decision
of a constitutional body (CSC) is reviewable by a non-constitutional
body?
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?
When the issue involves a review of the evidence, it involves a
question of fact because evidence, as defined, is the means,
sanctioned by the rules, of ascertaining in a judicial proceeding the
truth respecting a matter of fact. (Sec. 1 Rule 128)
Yes because the provision, it says: “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.
In an action for declaration of nullity of marriage the basis is
psychological incapacity. The RTC/Family Court dismissed the case
finding that there was no psychological incapacity. If the plaintiff
wants to appeal from that judgment, can she appeal directly to the
SC? Is it a question of fact or law?
SC as Presidential Electoral Tribunal
Article VII, Section 4, last paragraph, 1987 Constitution:
No. The appeal should be to the CA. The issue raised is a question
of fact because there is need to review the evidence to resolve it.
“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.”
Suppose the court nullified the marriage on ground of impotence
and the defendant wants to appeal because he wants to raise the
issue whether or not impotence is a ground for declaration of
nullity of marriage this would be a question of law because there is
no need for review of the evidence to resolve it. So appeal is to the
SC.
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
acting as the Presidential Electoral Tribunal.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE
Judicial Review of Presidential Proclamation of Martial or
Suspension of the Privilege of the Writ of Habeas Corpus
JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief
Clause
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“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 or
extension thereof, and must promulgate its
decision thereon within thirty days from its
filing.”
the Court of Appeals are not generally reviewable by the SC
(Sarmiento vs. Yu 497 SCRA 513). Also, factual findings of the trial
court, particularly when affirmed by the Court of Appeals, are
generally binding on the Court (Tan vs. GVT Engineering Services
498 SCRA 93; Office of the Ombudsman vs. Lazar0-Baldazo GR No.
170815 February 2, 2007).
It is not the function of the SC to determine the weight of the
evidence supporting the assailed decision (JR Blanco vs. Quasha
318 SCRA 373). However, factual issues may be delved into and
resolved where the findings and conclusions of the trial court or
the quasi-judicial bodies are frontally inconsistent with the
findings of the CA (Office of the Ombudsman vs. Tongson 499
SCRA 567).
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.
This is intended to prevent the Supreme Court from invoking the
Political Question doctrine laid down in many earlier cases that it is
the prerogative of the President to determine, 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.
Exceptions
While it is settled rule that the SC in the exercise of its power of
review is not a trier of facts, jurisprudence has, however,
recognized several exceptions in which factual issues may be
resolved by the SC, namely:
Congress and Jurisdiction of the SC
1.)
Article VIII, Section 2, 1987 Constitution:
a.)
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.
b.)
c.)
d.)
e.)
f.)
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.
2.)
g.)
h.)
i.)
However Article VI, Section 30 states:
j.)
“No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in
this Constitution without its advice and
concurrence.”
k.)
Thus , Congress cannot lessen but it can increase the SC’s powers
and jurisdiction, PROVIDED it is with the latter's advice and
concurrence.
So more or less, these are the scattered provisions of the
Constitution dealing with the SC’s jurisdiction.
The Supreme Court is not a trier of facts
when the findings are grounded entirely on speculation,
surmises or conjectures;
when the inference made is manifestly mistaken, absurd
or impossible;
when there is grave abuse of discretion;
when the judgment is based on a misapprehension of
facts;
when the findings of facts are conflicting;
when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both appellant and appellee;
when the findings are contrary to the trial court;
when the findings are conclusions without citation of
specific evidence on which they are based;
when the facts set forth in the petition, as well as in the
petitioner’s main and reply briefs, are not disputed
by the respondent;
when the findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and
when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly
considered, could justify a different conclusion
(Cristobal Cruz vs. Cristobal 498 SCRA 37; Heirs of
Dicman vs. Carino 490 SCRA 240; Safeguard Security
Agency Inc. vs. Tangco 511 SCRA 67; De Los Santos
vs. Elizalde 514 SCRA 14; NPC vs. De la Cruz GR No.
156093 Feb. 2, 2007; Spouses Yu vs. Ngo Yet Te GR
No. 155868 Feb. 6, 2007).
JURISDICTION OF THE COURT OF APPEALS
There are important principles worthy of note in relation to the
jurisdiction of the Supreme Court.
BRIEF HISTORY OF THE COURT OF APPEALS
The SC is not a trier of facts which means that passing upon a
factual issue is not within the province of the Court (Romy’s
Freight Service vs. Castro, 490 SCRA 160). The findings of facts of
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 the special courts except the
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SC which cannot be abolished by Congress. What was also spared
was the Court of Tax Appeals which was likewise not affected.
RA 7902 restored the power of the CA to try cases and conduct
hearings, receive evidence, and perform any and all acts necessary
to resolve factual issues raised in cases falling within the original
and appellate jurisdiction, including the power to grant new trials
or further proceedings (without limiting the motion for new trial
based on newly discovered evidence). Trials or hearings in the CA
must be continuous and completed within 3 months unless
extended by the Chief Justice.
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 69 justices after new divisions were
created, one based in Cebu City and the other in Cagayan de Oro
City pursuant to RA 8246.
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
They decide cases by a division of three. They sit en banc only for
administrative matters not to decide a case as it would be
impractical considering their number.
Original Concurrent
[1] Section 9, paragraph 1, BP 129
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).
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.
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).
Note: Refer to discussion the original concurrent jurisdiction of the
SC with the CA; with the CA and RTC etc.
Many people thought that the CA of President Aquino under E.O.
#33 is actually the IAC under another name only, but in a case
decided by the SC, reported in
The cases where its original jurisdiction is CONCURRENT with the
SC are: petitions for the issuance of writs of certiorari, prohibition,
mandamus against the following:
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO –
210 SCRA 589 [1992]


HELD: “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.”



the CSC (RA No. 7902);
Central Board of Assessment Appeals (PD No. 464; BP Blg.
129; RA No. 7902);
NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494; RA
No. 7902) or the Secretary of Labor under the Labor Code.
Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Hinog vs. Melicor, 455 SCRA 460)
Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
CONCURRENT with the SC and RTC are those involving habeas
corpus, quo warranto, and writs of certiorari, prohibition, and
mandamus against inferior courts and bodies (Secs. 9[1], 21[2]2, BP
Blg. 129; Art. VIII Sec. 5, 1987 Constitution).
Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as
follows:
“The Court of Appeals shall have the power to
receive evidence and perform any and all acts
necessary to resolve factual issues raised in (a)
cases falling within its original jurisdiction, such as
actions for annulment of judgments of regional trial
courts, as provided in paragraph (2) hereof; and in
(b) cases falling within its appellate jurisdiction
wherein a motion for new trial based only on the
ground of newly discovered evidence is granted by
it.”
For example, a petition for mandamus against the MTC of Cebu 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)
Q: Being concurrent, what will happen if such a case is filed
simultaneously in the CA and SC?
A: The consequence is found in Section 17 of the Interim Rules. In
other words, the Interim Rules are still intact.
So, Section 9 of BP 129, which defines the second highest court of
the land, has been amended by E.O. #33. In February 1995, it was
amended again by RA 7902, known as “The Act expanding the
jurisdiction of the CA.”
Interim Rules, Sec. 17. Petitions for writs of
certiorari, etc. - No petition for certiorari,
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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 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.
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, because it covers all
RTC’s and the appellate jurisdiction is exclusive.
And not only RTC’s. The law says “and quasi-judicial agencies,
instrumentalities, boards or commissions…” Not only decisions of
the RTC but also of quasi-judicial agencies or bodies, also called
administrative bodies.
Administrative bodies are 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 lose a case before anyone of these bodies, or
tribunals, you appeal the decision not with the SC, but to the CA.
Original Exclusive
[2] Section 9, paragraph 2, BP 129
(2) “Exclusive” jurisdiction over actions for
annulment of judgments of Regional Trial
Courts;
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).”
Q: Actions for annulment of judgments of RTC’s, is this similar to an
appeal? Is this the same as appealing the decision of the RTC to the
CA?
That is the addition.
A: No, because in appeal, you are invoking the appellate
jurisdiction of the CA. Here in paragraph 2, it is not appellate but
original jurisdiction. 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.
CSC – 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 are the COMELEC and the COA.
The implementation is found in Rule 47 of the Rules.
Obviously, the purpose of this statute is to unburden the SC with so
many cases.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
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.
Paragraph 3, Sec. 9 of BP 129 defines the appellate jurisdiction of
the CA.
[3] Section 9, paragraph 3, BP 129
And also “except those falling under the Labor Code of the
Philippines.”
(3) Exclusive appellate jurisdiction over all
final judgments, decisions, resolutions,
orders or awards of the RTCs and quasijudicial 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.
A labor case is not supposed to be filed in court but with a quasijudicial 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).
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.(This is
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already modified in the St. Martin Funeral Homes vs. NLRC case.)
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.
Note that under RA No. 9282, the judgments AND FINAL ORDERS
OF THE Court of Tax Appeals are no longer appealable by way of
petition for review to the CA. Judgments of the CTA rendered en
banc are appealable to the SC by way of Rule 45 (Sec. 11 RA No.
9282)
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.”
Exclusive appellate jurisdiction over decisions of MTCs in cadastral
or land registration cases pursuant to its delegated jurisdiction
(Sec. 34 BP Blg. 129 as amended by RA No. 7691). This is because
decisions of MTCs in these cases cases are appealable in the same
manner as decisions of RTCs (Sec. 34 BP Blg. 129).
So, 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.
Power to try and conduct hearings
Now what is this subparagraph 1 of the third paragraph?
[4] Section 9, last paragraph, BP 129:
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 go to the SC. Otherwise, you will be splitting the appeal into
two parts. (Modified in the People vs Mateo case as discussed in
Criminal Procedure.)
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)
Subparagraph 4 of the fourth paragraph of Section 17 refers to
appeal from the RTC on pure legal question which should be filed
with the SC.
Q: Suppose there are questions of fact, or it is an appeal on
questions of fact and questions of law?
Even if the CA is not a trial court, under the law it has the power to
try cases and conduct hearings, receive evidence and perform any
and all acts necessary to resolve factual issues in cases falling
within its original and appellate jurisdiction, including the power to
grant and conduct new trials or further proceedings (Sec. 9 [3], BP
129 as amended by RA 7902). The CA may pass upon factual issues
as when a petition for certiorari is filed before it (Alcazaren vs.
Univet Agricultural Products, Inc. 475 SCRA 636).
A: Under the 1948 Judiciary Law, you cannot appeal directly to the
SC. You must appeal to the CA.
The same thing 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.
This paragraph shows that the present CA 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.
Exclusive appellate jurisdiction
Exclusive appellate jurisdiction by way of ordinary appeal from the
RTC and the Family Courts (Sec. 9[3] BP Blg. 129).
The CA may pass upon factual issues as when a petition for
certiorari is filed before it(Alcazaren vs. Univet Agricultural
Products, Inc. 475 SCRA 636) or in petitions for writ of amparo or
habeas corpus data or in case of actions to annul judgment of the
RTC over which the CA has original jurisdiction (Bar 2008).
Exclusive appellate jurisdiction by way of petition for review from
the RTC rendered by the RTC in the exercise of its appellate
jurisdiction (Sec. 22 BP Blg. 129; Rule 43, Rules of Court; Sec. 9 BP
Blg. 129)
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? A: That is already interpreted in the case of
Exclusive appellate jurisdiction by way of petition for review from
the decisions, resolutions or orders or awards of the CSC, Central
Board of Assessment Appeals and other bodies mentioned in Rule
43 (Sec. 9[3]), BP Blg. 129) and of the Office of the Ombudsman in
administrative disciplinary cases (Enemecio vs. Office of the
Ombudsman 419 SCRA 82; Gonzales vs. Rosas 423 SCRA 488).
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.
making the courts readily accessible to the
people of the different parts of the region
and making the attendance of litigants and
witness as inexpensive as possible.
Though RTC Cebu City is found in the 7th Judicial Region, which
includes Cebu, Bohol, Negros Oriental and Siquijor province, its
territorial area is not the entire region, (7th Judicial Region), where
it belongs or even the entire province of Cebu or limited to Cebu
City only because it depends on the territory as defined by the SC.
“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.”
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 the
administrative order defining the area of responsibility of each
branch throughout the Philippines.
JURISDICTION OF THE
Interim Rules, Sec. 2. Territorial Jurisdiction of
Courts. -
REGIONAL TRIAL COURTS
Q: How many RTC’s are there in the Philippines?
BP 129 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
a) MetTCs, MTCs and MCTCs shall exercise
their jurisdiction in the city, municipality or
circuit for which the judge thereof is
appointed or designated.
So the Judiciary law has divided the country into 13 areas called
JUDICIAL REGIONS. From the 1st to the 12th, the 13th is actually in
the National Capital Region (NCR), Metro Manila. Every division is
divided into branches.
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.
Every RTC judge is appointed to a region which shall be his
permanent station, and his appointment states the branch of the
court and seat to which he shall be originally assigned. However,
the SC may assign temporarily an RTC judge to another region as
public interest may require, provided that such temporary
assignment shall not last longer than 6 months without the consent
of the RTC judge concerned.
Jurisdiction of the RTC
EXCLUSIVE ORIGINAL JURISDICTION– Note Section 19 was
amended by RA 7691, effective April 15, 1994 and entitled “An Act
Expanding the Jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts”.
The SC shall define the territory over which a branch of the RTC
shall exercise his authority. The law provides:
CONCURRENT ORIGINAL JURISDICTION with other courts –
Section 21
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
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.
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What does incapable of pecuniary estimation mean?
An action seeking to annul a resolution of a government-owned
and controlled corporation is an action incapable of pecuniary
estimation (Polomolok Water District vs. Polomolok General
Consumers Association GR No. 162124, October 19, 2007).
In an action incapable of pecuniary estimation, the basic issue is
one other than the recovery of a sum of money. If ever there is a
claim for money, it should only be incidental to the main issue.
An action to annul a Deed of Declaration of Heirs and for a partition
of land with an assessed value of P5,000.00 is an action incapable
of pecuniary estimation where the partition aspect is only
incidental to the action for annulment (Russel vs. Vestil 304 SCRA
739).
Where the action is principally the recovery of a sum of money, the
action is one capable of pecuniary estimation and jurisdiction
would then depend on the amount of the claim exclusive of
interest, damages of whatever kind, attorneys fees, litigation
expenses and costs. (Raymundo vs. CA, 213 SCRA 457 [1992];
Singsong vs. Isabela Sawmill, 88 SCRA 623 [1979])
An action for partition of a real property located in Taytay Rizal and
with an assessed value of P20,000.00, the resolution of which
involves the determination of hereditary rights, is an action
incapable of pecuniary estimation and thus, should be filed in the
RTC (Suggested answer UP Law Center Bar 2000) Note: This answer
could also be subject to an alternative answer, when it is argued
that an action for partition is one which involves interest in real
property. Hence, jurisdiction would be dependent on the assessed
value of the property.
The basic issue in an action incapable of pecuniary estimation is
one other than the recovery of money. In this kind of action the
money claim is merely incidental (ibid)
How to determine whether the action is capable or incapable of
pecuniary estimation“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 MTCs or the CFIs
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, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, 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 the CFI.”
An action for specific performance to compel the defendant to
execute a deed of conveyance covering a parcel of land with an
assessed value of P19,000.00 is an action incapable of pecuniary
estimation because the main issue is whether or not there is a right
to compel specific performance (Suggested answer, UP Law Center
Bar 2000). Note: This answer is subject to an alternative answer
which asserts that where the primary purpose of the action is to
recover or obtain ownership of the real property, the action is one
affecting title to real property and is, therefore, a real action. In a
real action, jurisdiction is determined by the assessed value of the
property.
An action for specific performance is one generally considered
incapable of pecuniary estimation (Russel vs. Vestil, supra).
Examples: of actions incapable of pecuniary estimation are those
for specific performance, support, or foreclosure of mortgage or
annulment of judgment, also actions questioning the validity of a
mortgage, annulling a deed of sale or conveyance and to recover
the price paid and for rescission which is a counterpart of specific
performance. (Russel vs. Vestil, 304 SCRA, 739, 744-745 [1999])
The amount of damages that may be claimed in addition to the
prayer for specific performance is not determinative of jurisdiction.
Thus, an action for specific performance and damages of
P200,000.00 is cognizable by the RTC even if the amount of
damages sought to be recovered is within the jurisdiction of the
MTC.
Such ruling was, however, modified in Go vs. UCPB, GR No. 156182
Nov. 11, 2004 where the court declared the following as real
actions:
1)
2)
Where, however, the demand is in the alternative, as in an action
to compel the defendant to deliver the house by completing its
construction or to pay the sum of P644.31, the action is one that is
capable of pecuniary estimation (Cruz vs. Tan 87 Phil. 627). Thus an
action for specific performance or in a the alternative, for damages
in the amount of P180,000.00 is one capable of pecuniary
estimation. Here, the amount of damages is determinative of
jurisdiction (Bar 1997).
judicial foreclosure of real estate mortgage;
actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
If as gleaned from the complaint, the principal relief sought by the
complaint is for the court to issue an injunction against the adverse
party and his representatives to permanently enjoin them from
preventing the survey of the subject land, the complaint is not a
possessory action but one for injunction. As such, the subject
A complaint for expropriation is incapable of pecuniary estimation
(Barangay San Roque vs. Heirs of Pastor, 334 SCRA 127).
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matter of litigation is incapable of pecuniary estimation and
properly cognizable exclusively by the RTC under Sec. 19(1) of BP
Blg. 129, as amended by RA No. 7691 (Bokingo vs. CA 489 SCRA
521).
[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 300,000.00] or, in
Metro Manila, where such demand or claim
exceeds Two Hundred Thousand pesos
(P200,000.00)[now, PhP 400,000].
An action for injunction is within the jurisdiction of the RTC being
an action incapable of pecuniary estimation. (Bar 1997).
An action for replevin of a motorcycle valued at P150,000.00 is
capable of pecuniary estimation. The basis of jurisdiction is the
value of the personal property sought to be recovered. The amount
of P150,000.00 falls within the jurisdiction of the MTC. (Bar 1997).
EXAMPLE: The shipper will ship to you goods involving a common
carrier and 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 is it? That is an admiralty or maritime
case.
An action for interpleader is capable of pecuniary estimation. If the
subject of interpleader is real property, then the jurisdictional
amount is determined by the assessed value of the land. If it be
personal property, then the value of the property.
Q: In which court will you file it?
A: It depends on how much is your claim. If your claim of the
damaged or lost cargo exceeds P300,000, then, RTC; if it is
P300,000 or less, MTC. In Metro Manila, the jurisdictional amount
is higher – it should be over P400,000.
Hence, an action of interpleader to determine who between the
defendants is entitled to receive the amount of P190,000.00 from
the plaintiff is within the jurisdiction of the MTC (Bar 1997; Makati
Development Corporation vs. Tanjuatco 27 SCRA 401).
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).
[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 in all real actions outside of forcible entry and unlawful detainer,
jurisdiction is determined by the assessed value of the real
property subject thereof.
[4] In all matters of probate, both testate and
intestate, where the gross value of the estate
exceeds One Hundred Thousand pesos
(P100,000.00) [now php300,000] or, in
probate matters in Metro Manila, where such
gross value exceeds Two Hundred Thousand
pesos (P200,000.00) [now P400,000].
What is a real action?
It is one affecting title to or possession of real property, or interest
therein. (Sec. 1, Rule 4)
Examples: would be accion publiciana (an action to recover
possession of real property), accion reinvidicatoria (action to
recover ownership of real property), quieting of title, provided the
assessed value of the property exceeds P20,000.00.
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.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now
have jurisdiction over accion publiciana when the value of the
property is P20,000 or less.
If there are debts due the decedent, thus, payable by his/her
estate, settlement would mean liquidation, which includes
inventory of all the assets and obligations payable, payment of the
debts, then distribution of the residue to the heirs. This is done by
the court thru an administrator appointed by it or thru the
executor appointed by the decedent.
In forcible entry and unlawful detainer, jurisdiction lies with the
MTC regardless of the assessed value.
Now, if in Metro Manila, the value is P50,000.
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Q: Where should the estate of the deceased person be settled, RTC
or MTC?
lessor, agricultural lessee, agricultural lands. When BP 129 was
enacted, the CAR and the JDRCs were abolished together with the
other courts created by law. Cases which they used to handle were
automatically transferred to the RTC. That was after BP 129 took
effect.
A: It depends on how much is the gross value of his estate. If it
exceeds P300,000, RTC. If it is P300,000 or less, it should be with
the MTC. In Metro Manila again, the gross should be more than
P400,000.
What were the cases which were usually falling within the original
jurisdiction of the former JDRC?
The jurisdiction of the court as a probate or intestate court relates
only to matters having to do with the settlement of the estate and
probate of the will of the decedent but does not extend to the
determination of questions of ownership that arise during the
proceedings.
Usually, those involving family and children, like support filed by
the child against his father, compulsory recognition, custody of
children, adoption proceedings.
Under BP 129, all of these are now within the jurisdiction of RTC.
[5] In all actions involving the contract of
marriage and marital relations.
HOWEVER, this has been amended again by RA 8369 (Family Courts
Act of 1997) and these cases are now under the jurisdiction of the
FAMILY COURTS: (See Sections 5 [b], [c], [e], [g])
Most of these cases are under the Family Code and now fall under
the jurisdiction of family courts (RA 8369, The Family Courts Act of
1997). But because family courts have not yet been constituted,
the SC has designated RTCs to take cognizance of such cases.
RA 8369, SECTION 5.Jurisdiction of Family
Courts. — The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
Q: What are the possible actions which you can imagine involving
the contract of marriage and marital relations?
xxxx
A: Annulment of marriage, legal separation, declaration of nullity,
dissolution of the absolute community of husband and wife, and
action for support.
b) Petitions for guardianship, custody of
children, habeas corpus in relation to the
latter;
RA 8369, SECTION 5.Jurisdiction of Family
Courts. — The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
c) Petitions for adoption of children and the
revocation thereof;
xxxx
xxxxxx
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;
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
xxxxx
No. 6 will be discussed later.
As regards the law transferring the jurisdiction of the CAR to the
RTC, it 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
[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 or before 1980, there were special courts existing.
Among these courts were the so called Juvenile and Domestic
Relations Courts (JDRC). Then you have the Court of Agrarian
Relations (CAR) which tried cases involving tenancy, agricultural
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases
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QUISMUNDO vs. COURT OF APPEALS - 201 SCRA 609 [1991]
of whatever kind, attorney’s fees, litigation expenses, and costs
xxx.”
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.
2.
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.
ACTIONS PURELY FOR DAMAGES
petitions for the determination of just
compensation to landowners; and
prosecution of criminal offenses under said Act.
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. Where will you file the case?
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 agree on the
amount of payment. You want to contest the amount of
compensation payable, in which court will you file your action?
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 tire P300,000 jurisdictional limit of the
MTC.
A: RTC and you ask for higher compensation.
[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 P300,000] 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]
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
P300,000. Since the case is purely for damages, it is included in
determining the jurisdiction of the court.
The best example is money claim. Most cases which go to court
now are money claims – an action to collect sum of money.
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 P300,000.
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
P300,000 outside Metro Manila – RTC, in Metro Manila, –
P400,000. If the amount that you are collecting is only P300,000 or
less obviously, you file your case in the MTC.
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.
If the value of the claim is > P300,000 – RTC
If the value of the claim is = or < P300,000 – MTC
EXAMPLE: P will file a case against D to recover a piece of land
worth P20,000.00 only. But her claim for damages exceeds
P300,000.
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?
Q: In what court will P file a civil case where she wants to recover a
piece of land with value of only P20,000?
A: MTC. 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
A: MTC because of paragraph [2]. As regards the damages of
P300,000.00, MTC still has jurisdiction because such damages,
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being incidental, is not included in determining the jurisdiction of
the RTC.
HELD: NO. The plaintiff is wrong. The title of the action is not
determinative on the court. Just like the rule on contracts
where the nature of the contract is not determined by the
title but by stipulation.
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….”
“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.”
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.
As may be seen from the foregoing enumeration, jurisdiction
is determined:
Q: You want to recover your car which your friend borrowed but
did not return, which court has jurisdiction?
(1)
(2)
(3)
A: MTC if the value is P300,000.00 or less, and RTC, if over.
by the nature of the action; or
by the value of the demand; or
by the value of the property involved.
[6] In all cases not within the exclusive
jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial
functions
Q: Who shall determine the value or how should the value be
determined?
A: In determining the jurisdiction of the court, over the subject
matter, the allegations in the complaint governs.
Practically, this makes the RTC the universal catcher – what does
not belong to any other court, belongs to the RTC. That’s what this
provision is saying.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA - 120
SCRA 89 [1983]
That is why, because of 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.
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.
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.
ISSUE #1: Whether or not the MTC has jurisdiction over the
case.
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 non-payment of installments over
subdivision lots.
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 conditions are
complied with. 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].
The counterpart of this case was the case of
“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.
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 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
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?
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performance with damages to compel the developer to
comply with the contract to maintain the roads.
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!
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:
“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.
“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.”
BENGUET CORPORATION vs. LEVISTE – 204 SCRA 99 [1991]
FACTS: A mining company entered into an 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.
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.
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.
FAJARDO vs. BAUTISTA – 232 SCRA 291 [1994]
The trend is to make the adjudication of mining cases a purely
administrative matter. Another case is the case of
FACTS: Isabelo and Marita Jareno are 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 lot 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.
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.
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.
“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.”
Now, according to Fajardo, the jurisdiction of the case belongs
to the RTC and not with the HLURB because the titles 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.
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. Now, this
is what happened in the case of
HELD: The RTC still has NO jurisdiction because the case
involved unsound real estate business practice on the part of
LUPANGCO ET AL vs. COURT OF APPEALS - 160 SCRA 848
[1988]
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FACTS: Lupangco et al were BS Accounting graduates and
reviewing to take the CPA exams in 1985.
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 debtor and creditor, it
should be filed with the RTC.
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.
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 orresolution of any quasi-judicial body. And the PRC is a quasijudicial body. So their resolution can only be questioned
before the CA and not 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 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.’”
HELD: The PRC is WRONG because PRC is not only a quasijudicial 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 its 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 quasijudicial 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.
“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.”
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 orbody exercising Judicial or quasi-judicial functions.
The RTC is devoid of any competence to pass upon the validity or
regularity of seizure and forfeiture proceedings conducted by the
Bureau of Customs, and to enjoin or otherwise interfere with the
said proceedings even if the seizure was illegal. Such act does not
deprive the Bureau of Customs of jurisdiction thereon. (RV Marzan
Freight, Inc. v. CA, 424 SCRA 596)
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.
The Court held that the Trial court was incompetent to pass upon
and nullify: (1) the seizure of the cargo in the abandonment
proceedings, and (2) the declaration made by the District Collector
of Customs that the cargo was abandoned and ipso facto owned by
the government. It, likewise, has no jurisdiction to resolve the issue
of whether or not the private respondent was the owner of the
cargo before it was gutted by fire. The trial court should have
rendered judgment dismissing the complaint, without prejudice to
the right of the private respondent to ventilate the issue before the
Lack of Jurisdiction by RTC on Customs Matters
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Commissioner of Customs and/or to the CTA as provided for in the
Tariff and Customs Code.
members or associates; between any or all of them and
the corporation, partnership or association of which they
are stockholders, members or associates, respectively,
and between such corporation, partnership or
association and the state insofar as it concerns their
individual franchise or right to exist as such entity.
Disputed Assessments
The CTA has jurisdiction over disputed assessments, and the
ordinary courts over non-disputed ones. Failure of a taxpayer to
appeal to the CTA makes the assessment final and executory.
Thereafter, if a collection suit is filed in the court, there can no
longer be any inquiry on the merits of the original case. (Republic v.
Dy Chay 1 SCRA 975; Olivares v. Marquez, 438 SCRA 679)
Non-Disputed Assessments
As provided in RA 9262, the CTA has:
“(1) Exclusive original jurisdiction in tax collection cases involving
final and executory assessments for taxes, fees, charges and
penalties; Provided, however, that collection cases where the
principal amount of taxes and fees, exclusive of charges and
penalties, claimed is less than P1M shall be tried by the proper
MTC, MetTC and RTC.
d.)
Petitions of corporations, partnerships or associations to
be declared in the state of suspension of payments in
cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but
foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation,
partnership or association has no sufficient assets to
cover its liabilities, but is under the management of a
Rehabilitation Receiver or Management Committee.
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;
Where, however, what is being questioned is the very authority
and power of the assessor, acting solely and independently, to
impose the assessment and of the treasurer to collect the tax, and
not merely the amounts of the increase in the tax, jurisdiction over
the case was properly with the trial courts. (Olivares v. Marquez
438 SCRA 679)
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?
Special jurisdiction to try special cases
Certain branches of the RTC may be designated by the SC to handle
exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban and land reform cases which do not fall under
the jurisdiction of quasi-judicial bodies and agencies, and/or such
other special cases as the SC may determine in the interest of a
speedy and efficient administration of justice (Sec. 233 BP Blg. 129)
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.
Jurisdiction over intra-corporate controversies
Sec. 5.2 of the Securities Regulation Code (RA No 8799) provides
that the RTCs shall exercise original and exclusive jurisdiction to
hear and decide the following cases:
b.)
Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations; and
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
The tax collection case would fall under the jurisdiction of the first
level courts where the amount does not exceed P300,000.00 or in
MM where it does not exceed P400,000.00.
a.)
c.)
Cases involving devises or schemes employed by or any
act, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders,
partners, members of associations or organizations
registered with the Commission.
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.
[2] In actions affecting ambassadors and other public
ministers and consuls.
Controversies arising out of inter-corporate or
partnership relations, between and among stockholders,
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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.
Q: What is the difference between an appeal made from the RTC to
CA and appeal from the MTC to RTC, which is dismissed by the
latter 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:
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.
Pursuant
to
original
jurisdiction of the RTC:
Pursuant
to
appellate
jurisdiction of the RTC:
COURT OF
APPEALS
COURT OF
APPEALS
Ordinary appeal
(Rule 41)
RTC
Petition for Review
(Rule 42)
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.
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.
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 an error of fact
or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.
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.
Summary of RTC jurisdiction:
1.)
2.)
Q: What are memoranda and briefs?
3.)
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.
As to the EXCLUSIVE original jurisdiction – Section
19 (BP 129);
As to its original CONCURRENT jurisdiction – Section
21 (BP 129);
As to its APPELLATE jurisdiction – Section 22 (BP
129)
JURISDICTION OF FAMILY COURTS
Under RA 8369, the Family Courts shall have exclusive jurisdiction
over the following civil cases:
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.
35
1.
Petitions for guardianship, custody of children and
habeas corpus involving children;
2.
Petitions for adoption of children and the revocation
thereof;
3.
Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
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property relations of husband and wife or those living
together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains;
4.
Petitions for support and/or acknowledgment;
5.
Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise known
as the “Family Code of the Philippines”;
6.
Petitions for declaration of status of children as
abandoned, dependent, or neglected children, petition
for voluntary of involuntary commitment of children, the
suspension, termination or restoration of parental
authority and other cases cognizable under PD No. 603,
E.O. No. 56 (series of 1986) and other related laws;
7.
Petitions for the constitution of the family home (Sec. 5
RA 8369).
demand does not exceed two hundred
thousand pesos (P200,000.00), 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.
In areas where there are no Family Courts, the above enumerated
cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA
No. 8369).
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).
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, RTC has jurisdiction when the penalty imposable is
imprisonment of more than 6 years until death penalty. So,
necessarily, if it is 6 years or below, the MTC has jurisdiction. Same
with civil cases.
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 when they are merely incidental to or a consequence of
the main cause of action. However, in cases where the claim for
damages is the main cause of action, or one of the causes of action,
the amount of such claim shall be considered in determining the
jurisdiction of the court.
Summary of jurisdiction of MTC:
a)
b)
c)
As to original jurisdiction – Section 33
As to delegated jurisdiction – Section 34
As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Jurisdiction and Payment of Docket Fees
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:
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.
Why pay the docket fee?
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 One hundred
thousand pesos (P100,000.00) or, in
Metro Manila where such personal
property, estate, or amount of the
Because 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. (Sun Insurance Office Ltd. [SIOLI] v. Asuncion
170 SCRA 274, 285 [1989])
Let us review what we learned in criminal procedure.
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SECTION 1.
Xxxxxx
when the amount of damages is not so alleged in the complaint or
information filed in court the corresponding filing fees need not be
paid and shall simply constitute a first lien on the judgment, except
in an award for actual damages. (General vs. Hon. Claravall, et al.,
195 SCRA 623)
When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages
without specifying the amount thereof in the
complaint or information, the filing fees
therefore shall constitute a first lien on the
judgment awarding such damages.
Q: Suppose there was no mention of any claim for moral or
exemplary damages, by not stating the amount claimed, can he still
prove them during the trial? YES
Where the amount of damages, other than
actual, is specified in the complaint or
information, the corresponding filing fees shall
be paid by the offended party upon the filing
thereof in court.
But he did not pay docket fee?
A: Never mind, once it is awarded, there is now a lien in the
judgment for the payment of the docket fee.
For Independent Civil Actions
Except as otherwise provided in these Rules,
no filing fees shall be required for actual
damages.
In the case of Sun Insurance if the damages was not mentioned in
the complaint in the civil case they are deemed waived. If it is
mentioned, and the amount is fixed you must pay the docket fee at
the start of the case though if it is not complete, you are given the
chance to complete the payment or amend the complaint within
reasonable time.
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation
to file such civil action separately shall be
allowed.
In criminal cases, even if there is no mention of damages in the
information, you can still prove and claim them as long as there is
no waiver or reservation.
Upon filing of the aforesaid joint criminal and
civil actions, the offended party shall pay in
full the filing fees based on the amount of the
check involved, which shall be considered as
the actual damages claimed. Where the
complaint or information also seeks to recover
liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall
pay additional filing fees based on the
amounts alleged therein. If the amounts are
not so alleged but any of these damages are
subsequently awarded by the court, the filing
fees based on the amount awarded shall
constitute a first lien on the judgment.
When docket fee is due for actual damage:
So in criminal cases, if the claim for moral or exemplary damages is
mentioned in the information, you must pay the docket fee upon
filing of the information. But whether alleged in the information or
not, you can claim for actual damages and there is no docket fee
for actual damages except in cases under BP 22. That is the
exception which is now embodied in Section 1 paragraph [b] which
was taken from SC circular 57-97 – there is no payment of docket
fee for actual damages except in criminal cases for violation of BP
22 because paragraph [b] says:
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall
be considered as the actual damages claimed.
EMNACE vs CA (2001) GR 126334
Payment of Filing fees In Case Civil Aspect Is Deemed Impliedly
Instituted In the Criminal Action:
OTHER CASES ON FILING FEE IN CIVIL CASES:
In any event, the Court now makes that intent plainer, and in the
interest of clarity and certainty, categorically declares for guidance
of all concerned that when the civil action is deemed impliedly
instituted with the criminal in accordance with Section 1, Rule 111
of the Rules of Court – because the offended party has not waived
the civil action, or reserved the right to institute it separately, or
instituted the civil action prior to the criminal action – the rule is as
follows: (1) when the amount of the damages, other than actual, is
alleged in the complaint or information filed in court, then the
corresponding filing fees shall be paid by the offended party upon
filing thereof in court for trial; (2) in any other case, however, -- i.e.
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
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plaintiff amended the complaint and paid the balance of the
docket fees.
“The same rule applies to permissive counterclaims…”
Re Compulsory Counterclaim
ISSUE: Whether or not the subsequent amendment cures the
defect?
Rule 141 on Legal Fees was revised effective August 26, 2004 by
AM No. 04-2-04-SC and the revision includes the payment of
docket fees not only for permissive counterclaim but also for
compulsory counterclaims. But the SC suspended the enforcement
of the new rates of legal fees under Rule 141 effective September
21, 2004, with respect to compulsory counterclaims, among others.
It did not suspend the imposition of legal fees.
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.
However, in Korea Technologies Co. Ltd. Vs. Lerma, 542 SCRA 1,
January 7, 2008, the Court said:
So based on the MANCHESTER ruling, you cannot cure the defect
by merely amending the complaint.
“On July 17, 1998, at the time PGSMC filed its Answer incorporating
its counterclaims against KOGIES, it was not liable to pay filing fees
for said counterclaim being compulsory in nature. We stress,
however, that effective August 16, 2004, under Sec. 7 of Rule 141,
as amended by AM No. 04-2-04-SC, docket fees are now required
to be paid in compulsory counterclaim or cross claims.”
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 is now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS – 170
SCRA 274 [1989]
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.
HELD: Thus, the Court rules as follows:
1.
2.
3.
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.
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. While still in the hospital
he filed an action for damages and based the amount of damages
on the current billing but alleged that he continues to incur
expenses as may be determined in the course of trial. He paid the
docket fee corresponding to the amount mentioned. After trial he
was able to establish expenses in the sum of P50,000.00.
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.
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 docket fee will constitute a lien on the
award.
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.
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, there was no SUN
INSURANCE decision yet. The guiding rule was still
MANCHESTER. But while this was pending the SUN
INSURANCE was already out.
Payment of docket fee and counterclaims
Second rule:
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FACTS: The case was for recovery of land with damages. So it
is not purely for damages. So the amount of filing fee is
assessed based on the assessed value of the land because it is
a real action, which the plaintiff paid.
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. The trial court ruled:
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 the SC said that the Manchester ruling was no
longer controlling because of Sun Insurance.
“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.”
But it enunciated another rule.
HELD: “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)
b)
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.
the value of the property and
the total amount of related damages sought.
“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.”
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.”
In other words, the total docket fee must be based on the
assessed value of the land and for the damages. Thus:
1.
2.
Q: What is the remedy of the plaintiff if he/she cannot really pay
the filing fee?
If the docket fee for the recovery of land is paid but
none for the damages, do not dismiss the entire
case! Just do not consider the claim for the
damages. Or,
second option, citing SUN INSURANCE, give him
reasonable time to pay the balance.
A: Have himself declared by the court as a pauper litigant.
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.
While Sun Insurance relaxed the rule (as to how or when to
complete the payment), it did not however, effect any change
in the rule that it is not only the filing of the complaint but
also the payment of the docket fee that is necessary for the
acquisition of the jurisdiction of the court over the complaint
filed. (Gensoli & Co. v. NLRC, 289 SCRA 407, 413 [1998]). If the
filing of the initiatory pleading is not accompanied by
payment of the docket fees, the court may allow payment of
the fee within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period. (Colarina v.
CA, 303 SCRA 647, 654 [1999])
Issue: Is the lawyer required to pay a filing fee?
HELD: Yes. “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)
Other interesting cases on docket fees.
No “file now, pay later” policy
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.
FILIPINAS SHELL PETROLEUM CORP vs. COURT OF APPEALS –
171 SCRA 674 [1989]
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Charles questioned it because of the rule that the payment of
docket fee is jurisdictional.
HELD: Plaintiff 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. “
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.”
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.”
“In the case at bar, in the strict sense, Mortz’s complaint
cannot be deemed to have been ‘re-filed’ 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 dismissed by the RTC of Leyte due to
improper venue. As far 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.”
“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.”
DE LEON vs. COURT OF APPEALS – 287 SCRA 94 [March 6,
1998]
“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’.”
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.
“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.”
Defendant 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
Plaintiff 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.
“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.”
Since Plaintiff alleged that the land, in which they claimed an
interest as heirs, had been sold for P4,378,000.00 to
defendant, this amount should be considered the estimated
value of the land for the purpose of determining the docket
fees.
Plaintiff 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).
“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.”
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“Since the action of Plaintiff against Defendant 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.”
thereof at Thirty Million Pesos (P30,000,000.00). Hence, this case is
one which is really not beyond pecuniary estimation, but rather
partakes of the nature of a simple collection case where the value
of the subject assets or amount demanded is pecuniarily
determinable. While it is true that the exact value of the
partnership's total assets cannot be shown with certainty at the
time of filing, respondents can and must ascertain, through
informed and practical estimation, the amount they expect to
collect from the partnership, particularly from petitioner, in order
to determine the proper amount of docket and other fees. 14 It is
thus imperative for respondents to pay the corresponding docket
fees in order that the trial court may acquire jurisdiction over the
action.
In Go vs. UCPB, GR No. 156182 Nov. 11, 2004 the court declared
the following as real actions:
3)
4)
judicial foreclosure of real estate mortgage;
actions to annul real estate mortgage;
Nevertheless, unlike in the case of Manchester Development Corp.
v. Court of Appeals, 16 where there was clearly an effort to defraud
the government in avoiding to pay the correct docket fees, we see
no attempt to cheat the courts on the part of respondents. In fact,
the lower courts have noted their expressed desire to remit to the
court "any payable balance or lien on whatever award which the
Honorable Court may grant them in this case should there be any
deficiency in the payment of the docket fees to be computed by
the Clerk of Court." 17 There is evident willingness to pay, and the
fact that the docket fee paid so far is inadequate is not an
indication that they are trying to avoid paying the required amount,
but may simply be due to an inability to pay at the time of filing.
This consideration may have moved the trial court and the Court of
Appeals to declare that the unpaid docket fees shall be considered
a lien on the judgment award.
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
EMNACE vs CA (2001) GR 126334
Issue: Whether or not respondent Judge acted without jurisdiction
or with grave abuse of discretion in taking cognizance of a case
despite the failure to pay the required docket fee;
On August 8, 1996, the Court of Appeals rendered the assailed
decision, 12 dismissing the petition for certiorari, upon a finding
that no grave abuse of discretion amounting to lack or excess of
jurisdiction was committed by the trial court in issuing the
questioned orders denying petitioner's motions to dismiss.
Petitioner, however, argues that the trial court and the Court of
Appeals erred in condoning the non-payment of the proper legal
fees and in allowing the same to become a lien on the monetary or
property judgment that may be rendered in favor of respondents.
There is merit in petitioner's assertion. The third paragraph of
Section 16, Rule 141 of the Rules of Court states that:
Not satisfied, petitioner filed the instant petition for review, raising
the same issues resolved by the Court of Appeals, namely:
I.
The legal fees shall be a lien on the monetary or property judgment
in favor of the pauper-litigant.
Failure to pay the proper docket fee;
Xxxx
xxxx
xxxx
Respondents cannot invoke the above provision in their favor
because it specifically applies to pauper-litigants. Nowhere in the
records does it appear that respondents are litigating as paupers,
and as such are exempted from the payment of court fees.
It can be readily seen that respondents' primary and ultimate
objective in instituting the action below was to recover the
decedent's 1/3 share in the partnership's assets. While they ask for
an accounting of the partnership's assets and finances, what they
are actually asking is for the trial court to compel petitioner to pay
and turn over their share, or the equivalent value thereof, from the
proceeds of the sale of the partnership assets. They also assert that
until and unless a proper accounting is done, the exact value of the
partnership's assets, as well as their corresponding share therein,
cannot be ascertained. Consequently, they feel justified in not
having paid the commensurate docket fee as required by the Rules
of Court.
The rule applicable to the case at bar is Section 5(a) of Rule 141 of
the Rules of Court, which defines the two kinds of claims as:
1)
2)
those which are immediately ascertainable; and
those which cannot be immediately ascertained as to the
exact amount.
This second class of claims, where the exact amount still has to be
finally determined by the courts based on evidence presented, falls
squarely under the third paragraph of said Section 5(a), which
provides:
We do not agree. The trial court does not have to employ
guesswork in ascertaining the estimated value of the partnership's
assets, for respondents themselves voluntarily pegged the worth
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In case the value of the property or estate or the sum claimed is
less or more in accordance with the appraisal of the court, the
difference of fee shall be refunded or paid as the case may be.
(Emphasis ours)
fees. Nevertheless, as in other procedural rules, it may be liberally
construed in certain cases if only to secure a just and speedy
disposition of an action. While the rule is that the payment of the
docket fee in the proper amount should be adhered to, there are
certain exceptions which must be strictly construed.
In Pilipinas Shell Petroleum Corporation v. Court of Appeals, 19 this
Court pronounced that the above-quoted provision "clearly
contemplates an initial payment of the filing fees corresponding to
the estimated amount of the claim subject to adjustment as to
what later may be proved." 20 Moreover, we reiterated therein the
principle that the payment of filing fees cannot be made contingent
or dependent on the result of the case. Thus, an initial payment of
the docket fees based on an estimated amount must be paid
simultaneous with the filing of the complaint. Otherwise, the court
would stand to lose the filing fees should the judgment later turn
out to be adverse to any claim of the respondent heirs.
In recent rulings, this Court has relaxed the strict adherence to the
Manchester doctrine, allowing the plaintiff to pay the proper
docket fees within a reasonable time before the expiration of the
applicable prescriptive or reglementary period.
In the recent case of National Steel Corp. v. Court of Appeals, 25
this Court held that:
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.
The matter of payment of docket fees is not a mere triviality. These
fees are necessary to defray court expenses in the handling of
cases. Consequently, in order to avoid tremendous losses to the
judiciary, and to the government as well, the payment of docket
fees cannot be made dependent on the outcome of the case,
except when the claimant is a pauper-litigant.
It does not follow, however, that the trial court should have
dismissed the complaint for failure of private respondent to pay
the correct amount of docket fees. Although the payment of the
proper docket fees is a jurisdictional requirement, the trial court
may allow the plaintiff in an action to pay the same within a
reasonable time before the expiration of the applicable prescriptive
or reglementary period. If the plaintiff fails to comply within this
requirement, the defendant should timely raise the issue of
jurisdiction or else he would be considered in estoppel. In the latter
case, the balance between the appropriate docket fees and the
amount actually paid by the plaintiff will be considered a lien or any
award he may obtain in his favor. (Emphasis ours)
Applied to the instant case, respondents have a specific claim —
1/3 of the value of all the partnership assets — but they did not
allege a specific amount. They did, however, estimate the
partnership's total assets to be worth Thirty Million Pesos
(P30,000,000.00), in a letter addressed to petitioner. Respondents
cannot now say that they are unable to make an estimate, for the
said letter and the admissions therein form part of the records of
this case. They cannot avoid paying the initial docket fees by
conveniently omitting the said amount in their amended complaint.
This estimate can be made the basis for the initial docket fees that
respondents should pay. Even if it were later established that the
amount proved was less or more than the amount alleged or
estimated, Rule 141, Section 5(a) of the Rules of Court specifically
provides that the court may refund the excess or exact additional
fees should the initial payment be insufficient. It is clear that it is
only the difference between the amount finally awarded and the
fees paid upon filing of this complaint that is subject to adjustment
and which may be subjected to a lien.
Accordingly, the trial court in the case at bar should determine the
proper docket fee based on the estimated amount that
respondents seek to collect from petitioner, and direct them to pay
the same within a reasonable time, provided the applicable
prescriptive or reglementary period has not yet expired. Failure to
comply therewith, and upon motion by petitioner, the immediate
dismissal of the complaint shall issue on jurisdictional grounds.
TOTALITY RULE
In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon.
Maximiano Asuncion, this Court held that when the specific claim
"has been left for the determination by the court, the additional
filing fee therefor shall constitute a lien on the judgment and 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." Clearly, the rules and jurisprudence contemplate
the initial payment of filing and docket fees based on the estimated
claims of the plaintiff, and it is only when there is a deficiency that
a lien may be constituted on the judgment award until such
additional fee is collected.
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.”
Under This rule, 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
Based on the foregoing, the trial court erred in not dismissing the
complaint outright despite their failure to pay the proper docket
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claims in all the causes of action, irrespective of whether the causes
of action arose out of the same or different transactions (Sec. 33 as
amended by RA No. 7691; PANTRANCO North Express Inc. vs.
Standard Insurance Company Inc., 453 SCRA 482).
Where two or more plaintiffs, having separate causes of action, sue
one defendant or a plaintiff sues one or more defendants in a
single complaint, based on several causes of action for or against
each other, respectively, the totality rule applies only where there
is a common question of fact or law among them as provided in
Section 6 of Rule 3.
ILLUSTRATION of joinder of causes of action:
The defendant secured from me two loans covered by 2 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 P175,000.00.
When there are several parties-plaintiffs or defendants and there
are several causes of action, as in the last example given, when you
join the causes of action there will necessarily be a joinder of
parties. In such a case there can only be a proper joinder of causes
of action when there is a proper joinder of parties and the totality
rule applies only when the joinder is proper.
I decided to file one complaint embodying 2 causes of action
against him although I have the option also to file 2 separate
complaints. If you will look at the value of each claim which is
P175,000 that is triable by the MTC but if you will add the claims
that will be P350,000.00.
Q: When is a joinder of parties proper?
Q: Which court will have jurisdiction?
A: It is proper when there is a common question of fact and law.
Note also that joinder of parties is permissive (Sec. 6, R3)
A: The RTC because the jurisdictional amount is the total amount.
Jurisdiction of the MTC in Forcible Entry and Unlawful Detainer
Never mind that there are 2 separate loans because the law says
“irrespective of whether the cause of action arose out of the same
or different transactions.”
Sec. 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”
In the example, there are two causes of action arising from two
separate transactions. Illustrate a joinder of causes of action arising
from only one transaction.
Suppose the loan is payable in installments on separate dates. Each
failure is a cause of action.
These are called accion interdictal and the only issue is physical
possession of the property. The two cases should not be confused
with accion publiciana which is also the recovery of possession.
Now in the examples, there is only one plaintiff and one
defendant.
What about when there are several plaintiffs or defendants?
In unlawful detainer, the plaintiff 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.
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. They decided to file only one
complaint and, in effect, joined the 4 causes of action.
Q: Suppose the unpaid rentals already amount to almost half a
million pesos, where should the case be filed?
Q: What will be now the basis of jurisdiction the claim of each
plaintiff or the totality of the claims of the 4 plaintiffs?
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.
A: The totality of the 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.”
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. Such declaration of
ownership is not final. The question of ownership must be litigated
in a separate action in the RTC.
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.
Totality Rule subject to rule on joinder of parties
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Let us now proceed to the third paragraph of Section 33 as
amended by R.A. 7691:
the assessed value of the subject property as reflected in the
uncontroverted tax declaration is only P11,160.00. The trial court,
in its decision, rejected the contention of the defendant holding
that since the complaint alleged the estimated value of the land as
P50,000.00, such allegation must prevail over the assessed value of
P11,160.00 relied upon by the defense. What determines the
nature of the action and the jurisdiction over the complaint, said
the trial court, are the facts alleged in the complaint and not those
alleged in the answer of the defendants. The CA affirmed.
Real Actions other then Forcible Entry and Unlawful Detainer
[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)
On appeal by certiorari the SC held:
“The subject land has an assessed value of P11,160.00 as reflected
in the Tax Declaration No. 7565, a common exhibit of the parties.
The bare claim of respondents that it has a value of P50,000.00
thus fails. The case, therefore, falls within the exclusive original
jurisdiction of the municipal trial court.
It was error then for the RTC to take cognizance of the complaint
based on the allegation that “the present estimated value of the
land is P50,000.00”…The estimated value, commonly referred to as
the fair market value of the property.”
Aside from forcible entry and unlawful detainer, MTCs now have
jurisdiction over other real actions or actions involving title to or
possession, or any interest therein, like accion publiciana and
accion reinvidicatoria cases where the assessed value of the land
should not exceed P20,000. In Metro Manila, it is not exceeding
P50,000 In cases of land not declared for taxation purposes, the
value of such property shall be determined by the assessed value of
the adjacent lots.. 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)
An accion reivindicatoria is a suit which has for its object the
recovery of possession over the real property as owner. It involves
recovery of ownership and possession based on said ownership.
An accion publiciana is one for the recovery of possession or the
right to possess. It is also referred to as an ejectment suit after the
expiration of one year after the occurrence of the cause of action
or from the unlawful withholding of possession of the realty. It is
considered a plenary action to recover the right of possession when
dispossession is effected by means other than unlawful detainer or
forcible entry.
Q: What is the Assessed value?
As a rule cadastral and land registration cases
fall under the jurisdiction of the RTC.
A: The assessed value of real property can have reference only to
the tax rolls in the municipality where the property is located, and
is contained in the tax declaration. It is elementary that the tax
declaration indicating the assessed value of the property enjoys the
presumption of regularity as it has been issued by the proper
government agency (Hilario vs. Salvador, 457 SCRA 815).
Q: What is the difference between a land registration proceeding
and a cadastral proceeding?
A: Cadastral is compulsory registration.
This is 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.
In Vda. De Barrera vs. Heirs of Legaspi, GR No. 174346, Sept. 12,
2008, the facts point to a complaint for reconveyance of possession
of real property with preliminary injunction and damages filed in
the RTC of Tangub City. One of the defenses raised by the
defendants was the court’s lack of jurisdiction over the complaint,
Q: Now, what is this delegated jurisdiction all about?
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A: It refers only to cadastral and land registration cases which
involve the titling of property under the Torrens system or
cadastral land registration.
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.
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 to MTCs to
hear and decide land registration and cadastral cases under the
following conditions:
1.)
2.)
REVISED RULE ON SUMMARY PROCEDURE as amended by A.M.
02-11-09-SC, effective November 25, 2002
Cases subject to summary procedure
(a) Forcible entry and unlawful detainer cases; and
(b) All other claims where the total claim does not exceed
P100,000.00 (outside Metro Manila), or does not exceed
P200,000.00 (Metro Manila) exclusive of interests and
costs. Probate proceedings are not covered by the rule
on summary procedure even if the gross value of the
estate does not exceed P100,000.00 or P200,000.00.
when there is no controversy or nobody is
contesting your petition; or
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 because in exercise of delegated
jurisdiction it is acting as an RTC.
Some basic principles to be remembered in civil cases subject to a
summary procedure:
The value of the lot shall be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declaration of the
real property.
(a)
Not all pleadings in an ordinary civil action are allowed in
a summary procedure. The only pleadings allowed are
(1) complaint; (2) compulsory counterclaim; (3) crossclaim pleaded in the answer, (4) answers to these
pleadings (Sec. 3)
(b) The court in a summary procedure may dismiss the case
outright on any of the grounds for the dismissal of a civil
action (Sec. 4)
(c) Should the defendant fail to answer the complaint within
the period of ten (10) days from service of summons, the
court may motu proprio, or on motion of the plaintiff,
render judgment (not an order declaring the defendant
in default) as may be warranted by the facts alleged and
limited to what is prayed for (Sec. 6)
(d) There shall be preliminary conference held but there
shall be no trial. Instead the parties shall submit
affidavits and position papers (Secs ,8,9)
(e) Within thirty (30) days from the receipt of the last
affidavits and positions papers, or the expiration of the
period for filing the same, the court shall render
judgment (Sec. 10)
(f) As a rule a motion to dismiss is not allowed except on
either of two grounds (1) lack of jurisdiction over the
subject matter, or (2) failure to comply with the
barangay conciliation proceedings (Sec. 19(a))
(g) Although a petition for certiorari is prohibited in cases
subject to summary procedure, the Court in one case
allowed the petition because the trial court gravely
abused its discretion by indefinitely suspending the
proceedings in ejectment cases thus, acting contrary to
the purposes of the Rules on Summary Procedure. The
SC recognized that because the order of the trial court
cannot be appealed from it being an interlocutory and
since the proceedings are covered by the Rules on
Summary Procedure, a ‘procedural void’ exists. Invoking
its power to suspend the rules to promote substantial
justice, the SC gave due course to the petition pro hac
vice because of the extraordinary circumstances of the
case. The Court observed that allowing the petition
would avoid the mischiefs sought to be curbed by the
Rules and would give spirit and life to the Rules on
Summary Procedure (Go vs. CA 297 SCRA 574).
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. It 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. In an application for bail the RTC also has
jurisdiction 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.
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(h) It must be emphasized that in a civil case governed by
the Rules on Summary Procedure, no hearing is
conducted. Instead, the parties are required to submit
their respective position papers (Five Star Marketing
Corporation vs. Booc, 535 SCRA 28).
reform activities in the Philippines for the fiscal period October
2007 to September 30, 2009 . In a letter to Chief Justice Reynato S.
Puno dated October 10, 2007, ABA-ROLI proposed the
establishment of small claims pilot courts among first level courts
in different regions of the Philippines. The small claims pilot court
project was proposed by ABA to USAID after consultation with
various Supreme Court officials in conjunction with the 2000 Action
Plan for Judicial Reform. Among the critical issues being addressed
by the APJR are case congestion and delay. The congestion of case
dockets is central to a multitude of problems, either as cause or
effect; it is either the 34 A.M. No. 08-8-7-SC manifestation or the
source of other difficulties. Addressing this concern is thus an
imperative8 which is why present reforms in judicial systems and
procedures have included the following:
Q: Now, what are the PROHIBITED documents, motions, or
pleadings under the Summary Rules?
A: The following (Under Section 19):
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
9.)
10.)
11.)
12.)
Motion to quash except when your ground is
a.) lack of jurisdiction over the subject
matter; or
b.) failure to comply with the Barangay
Conciliation;
Motion for bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial; your remedy
here is appeal;
Petition for relief from judgement;
Motion for extension of time to file an affidavit;
Memoranda;
Petition for certiorari, mandamus, or prohibition
against any interlocutory orders issued by the
court;
Motion to declare the defendant in default;
Dilatory motions postponements;
Reply;
Third-party complaints;
Interventions;
1.
2.
3.
4.
streamlining procedural rules to eliminate provisions
that cause delay and permit dilatory tactics;
re-engineering the jurisdictional structure of the
courts to ensure easy geographical access to the
courts particularly by the poor litigants;
improving the case management system toward
more transparency, accountability and integrity of
the judicial process and for better efficiency; and
strengthening of the mediation mechanism to
promote early dispute resolution nationwide.
This involves the institutionalization of court-annexed mediation,
and the establishment of a Mediation Center to continually
monitor and assess the performance of the system and provide
training and research.
Jurisdiction Over Small Claims Cases
Introduction of the Concept of Small Claims Court in the
Philippines
Notwithstanding the absence of a law at the present time creating
small claims courts in our country, the Supreme Court through a
program in partnership with ABA-ROLI and USAID, can promulgate
and implement a simplified rule of procedure exclusively for small
claims and assign a certain number of existing first level courts to
take cognizance of small claims. This does not need legislative
action as the Court can designate several first level courts all over
the country to jump-start the pilot project. Thus, pursuant to its
rule-making power, the Court under the present Constitution can
adopt a special rule of procedure to govern small claims cases and
select pilot courts that would empower the people to bring suits
before them pro se to resolve legal disputes involving simple issues
of law and procedure without the need for legal representation
and extensive judicial intervention. This system will enhance access
to justice especially by those who cannot afford the high costs of
litigation even in cases of relatively small value. It is envisioned that
by facilitating the traffic of cases through simple and expeditious
rules and means, our Court can improve the perception of justice in
this country, thus giving citizens a renewed “stake” in preserving
peace in the land. This is a hopeful message to our people that
The idea of establishing Small Claims Courts in the Philippines was
first proposed to the Supreme Court through a study conducted in
1999 by Justice Josue N. Bellosillo, former Senior Associate Justice
of the Supreme Court. After observing small claims courts and
interviewing judges of such courts in Dallas, Texas, United States in
1999, Justice Bellosillo proposed in a Report that courts can be
established in the Philippines to handle exclusively small claims
without the participation of lawyers and where ordinary litigants
can prosecute and defend a small claims action through readymade forms. He envisioned the small claims courts as another
positive approach, in addition to mandatory pre-trial, for solving
court congestion and delay.The study and report was subsequently
endorsed for legislative action to Senator Franklin Drilon who later
funded a project for this purpose. At the regular session of the
Fourteenth Congress, House Bill No. 2921 entitled “An Act
Establishing Small Claims Courts” was introduced by Congressman
Jose V. Yap. Thereafter, on July 3, 2007, Senate Bill No. 800 entitled
“Philippine Small Claims Court Act” was filed by Senator Ramon A.
Revilla, Jr. and, on September 3, 2007, the bill passed First Reading
and was referred to the Committee(s) on Justice and Human Rights
and Finance. The same is still pending with these committees at
present. In 2007, the United States Agency for International
Development (USAID) awarded a two-year grant to the American
Bar Association-Rule of Law Initiative (ABA-ROLI) to pursue judicial
Rule of Procedure for Small Claims Cases “there is no need to
despair for there is deliverance in law; that is a promise that has
been fulfilled by law in the past; it is a promise law will again fulfill
in the future.” In December 2007, the Supreme Court established a
Technical Working Group composed of the Court Administrator,
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the Program Management Office Administrator, selected judges
and other officials of the Supreme Court and the Integrated Bar of
the Philippines to undertake the following activities:
resorting to self-help or forcible means to seek their remedy. (Pace
v. Hillcrest Motor Co., 161 Cal. Rptr. 663, 664 Ct. App. 1980)
SEC. 3. Definition of Terms.—For purposes of this Rule:
1)
2)
3)
4)
The development of Rules and Procedures to Implement
Pilot Small Claims Courts;
The establishment of Criteria to Select Appropriate
Regions/Judges for Pilot Small Claims Courts and set
Peso Limits for the Small Claims Courts
Through the Philippine Judicial Academy, the conduct of
training programs for Judges and their personnel
participating in the Pilot Small Claims Courts project; and
The employment of “Justice on Wheels” buses to launch
pilot small claims tribunals.
(a) Plaintiff refers to the party who initiated a small
claims action. The term includes a defendant who has
filed a counterclaim against plaintiff;
(b) Defendant is the party against whom the plaintiff
has filed a small claims action. The term includes a
plaintiff against whom a defendant has filed a claim, or
a person who replies to the claim;
(c)
Person
is
an
individual,
corporation,
partnership,limited liability partnership, association, or
other juridical entity endowed with personality by law;
Rule of Procedure for Small Claims Cases 1
A.M. No. 08-8-7-SC
RULE OF PROCEDURE
(d) Individual is a natural person;
FOR SMALL CLAIMS CASES
(e) Motion means a party’s request, written or oral, to
the court for an order or other action. It shall include an
informal written request to the court, such as a letter;
EFFECTIVE OCTOBER 1, 2008
MANILA, PHILIPPINES
(f) Good cause means circumstances sufficient to
justifythe requested order or other action, as
determined by the judge; and
SEPTEMBER 2008
RULE OF PROCEDURE
(g) Affidavit means a written statement or declaration
of facts that are sworn or affirmed to be true.
FOR SMALL CLAIMS CASES
SEC. 4. Applicability.—The Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall apply this Rule
in all actions which are: (a) purely civil in nature where
the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b)
the civil aspect of criminal actions, either filed before
the institution of the criminal action, or reserved upon
the filing of the criminal action in court, pursuant to
Rule 111 of the Revised Rules Of Criminal Procedure.
These claims or demands may be:
SECTION 1. Title.—This Rule shall be known as “The
Rule of Procedure for Small Claims Cases.”
SEC. 2. Scope.—This Rule shall govern the procedure in
actions before the Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts for payment of money
where the value of the claim does not exceed One
Hundred Thousand Pesos (P100,000.00) exclusive of
interest and costs.
Explanatory Note: The purpose of a small claims process is to
provide an inexpensive and expeditious means to settle disputes
over small amounts. For purposes of the project, the amount has
been set for claims involving amounts of not more than
P100,000.00. The theory behind the small claims system is that
ordinary litigation fails to bring practical justice to the parties when
the disputed claim is small, because the time and expense required
by the ordinary litigation process is so disproportionate to the
amount involved that it discourages a just resolution of the dispute.
The small claims process is designed to function quickly and
informally. There are no attorneys, no formal pleadings and no
strict legal rules of evidence. The small claims court system is not a
“typical inferior court.” Parties are encouraged to file small claims
court actions to resolve their minor disputes as opposed to
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
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2. Quasi-contract; or
inadmissible affidavit(s) or portion(s) thereof shall be
expunged from the record.
3. Contract;
SEC. 8. Payment of Filing Fees.—The plaintiff shall pay the
docket and other legal fees prescribed under Rule 141 of
the Revised Rules of Court, unless allowed to litigate as an
indigent.
(c) The enforcement of a barangay amicable settlement
or an arbitration award involving a money claim
covered by this Rule pursuant to Sec. 417 of Republic
Act 7160, otherwise known as the Local Government
Code of 1991.
A claim filed with a motion to sue as indigent (Form 6-SCC)
shall be referred to the Executive Judge for immediate action
in case of multi-sala courts, or to the Presiding Judge of the
court hearing the small claims case. If the motion is granted
by the Executive Judge, the case shall be raffled off or
assigned to the court designated to hear small claims cases.
If the motion is denied, the plaintiff shall be given five (5)
days within which to pay the docket fees, otherwise, the
case shall be dismissed without prejudice. In no case shall a
party, even if declared an indigent, be exempt from the
payment of the P1,000.00 fee for service of summons and
processes in civil cases.
Explanatory Note: The kinds of cases that can be filed in Small
Claims Court vary, but the case must seek money only. For
example, a suit cannot be brought in Small Claims Court to force a
person or business to fix a damaged good; or to demand fulfillment
of a promised obligation which is not purely for money, or to seek
money to compensate for pain and suffering. Some of the kinds of
cases which are allowed as small claims include the following:
1.
2.
3.
4.
5.
Actual damage caused to vehicles, other personal
property, real property or person;
Payment or reimbursement for property, deposit, or
money loaned;
Payment for services rendered, insurance claim, rent,
commissions, or for goods sold and delivered;
Money claim pursuant to a contract, warranty or
agreement; and
Purely civil action for payment of money covered
bybounced or stopped check.
Explanatory Note: A plaintiff may commence an action in the small
claims court by filing a Statement of Claim under oath with the
Clerk of the first level court in person or by mail. The claim form
shall be a simple nontechnical form approved or adopted by the
Supreme Court. The claim form shall set forth
1)
2)
3)
SEC. 5. Commencement of Small Claims Action.—A small
claims action is commenced by filing with the court an
accomplished and verified Statement of Claim (Form 1-SCC)
in duplicate, accompanied by a Certification of Non-forum
Shopping (Form 1-A, SCC), and two (2) duly certified
photocopies of the actionable document/s subject of the
claim, as well as the affidavits of witnesses and other
evidence to support the claim. No evidence shall be allowed
during the hearing which was not attached to or submitted
together with the Claim, unless good cause is shown for the
admission of additional evidence.
4)
5)
the name and address of the defendant, if known;
the amount and the basis of the claim;
that the plaintiff, where possible, has demanded
payment and, in applicable cases, possession of the
property;
that the defendant has failed or refused to pay, and
where applicable, has refused to surrender the property;
and
that the plaintiff understands that the judgment on his
or her claim will be conclusive and without a right of
appeal.
The plaintiff should attach to the claim all documents necessary to
prove his/her right to reliefs prayed for. The form or accompanying
instructions shall include information that the plaintiff
No formal pleading, other than the Statement of Claim
described in this Rule, is necessary to initiate a small claims
action.
1.
2.
3.
SEC. 6. Joinder of Claims.—Plaintiff may join in a single
statement of claim one or more separate small claims
against a defendant provided that the total amount claimed,
exclusive of interest and costs, does not exceed P100,000.00.
may not be represented by an attorney;
has no right of appeal; and
may ask the court to waive fees for filing and serving the
claim on the ground that the plaintiff is indigent unable
to pay them, using the forms approved by the Supreme
Court for that purpose.
SEC. 9. Dismissal of the Claim.—After the court determines
that the case falls under this Rule, it may, from an
examination of the allegations of the Statement of Claim and
such evidence attached thereto, by itself, dismiss the case
outright on any of the grounds apparent from the Claim for
the dismissal of a civil action.
SEC. 7. Affidavits.—The affidavits submitted under this Rule
shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence.
A violation of this requirement shall subject the party, and
the counsel who assisted the party in the preparation of the
affidavits, if any, to appropriate disciplinary action. The
Explanatory Note: Jurisdiction and venue requirements in small
claims actions shall be the same as in other civil actions provided in
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the Rules of Civil Procedure. A defendant may challenge jurisdiction
or venue or court location by including these defenses in his
Response before appearing in the scheduled hearing. In all cases,
even if the defendant does not ask for dismissal of the case in the
Response or appear at the hearing, the court shall inquire into the
facts sufficiently to determine whether jurisdiction and authority of
the court over the action are proper, and shall make its
determination accordingly.
the joinder of third parties; and (d) is not the subject of
another pending action, the claim shall be filed as a
counterclaim in the Response; otherwise, the
defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount
and nature thereof are within the coverage of this Rule
and the prescribed docket and other legal fees are paid.
SEC. 10. Summons and Notice of Hearing.—If no ground
for dismissal is found, the court shall forthwith issue
Summons (Form 2-SCC) on the day of receipt of the
Statement of Claim, directing the defendant to submit a
verified Response.
Explanatory Note: If a defendant has a claim against a plaintiff that
exceeds the limits stated in Section 2 of this Rule, and the claim
relates to the contract, transaction, matter, or event which is the
subject of the plaintiff’s claim, the defendant may commence an
action against the plaintiff in a court of competent jurisdiction. If
said claim which is beyond the limit of money claim provided in this
Rule is filed with the Response before the Small Claims Court, the
latter shall dismiss the counterclaim.
The court shall also issue a Notice (Form 4-SCC) to both
parties, directing them to appear before it on a specific
date and time for hearing, with a warning that no
unjustified postponement shall be allowed, as provided
in Section 19 of this Rule. The summons and notice to
be served on the defendant shall be accompanied by a
copy of the Statement of Claim and documents
submitted by plaintiff, and a copy of the Response
(Form 3-SCC) to be accomplished by the defendant. The
Notice shall contain an express prohibition against the
filing of a motion to dismiss or any other motion under
Section 14 of this Rule.
SEC. 14. Prohibited Pleadings and Motions.—The
following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 11. Response.—The defendant shall file with the
court and serve on the plaintiff a duly accomplished
and verified Response within a non-extendible period
of ten (10) days from receipt of summons. The
Response shall be accompanied by certified
photocopies of documents, as well as affidavits of
witnesses and other evidence in support thereof. No
evidence shall be allowed during the hearing which was
not attached to or submitted together with the
Response, unless good cause is shown for the
admission of additional evidence.
SEC. 12. Effect of Failure to File Response.—Should the
defendant fail to file his Response within the required
period, the court by itself shall render judgment as may
be warranted by the facts alleged in the Statement of
Claim limited to what is prayed for.
SEC. 15. Availability of Forms; Assistance by Court
Personnel.—The Clerk of Court or other court personnel
shall provide such assistance as may be requested by a
plaintiff or a defendant regarding the availability of
forms and other information about the coverage,
requirements as well as procedure for small claims
cases.
The court however, may, in its discretion, reduce the
amount of damages for being excessive or
unconscionable.
SEC. 16. Appearance.—The parties shall appear at the
designated date of hearing personally or through a
representative authorized under a Special Power of
Attorney (Form 5-SCC) to enter into an amicable
settlement, to submit to Judicial Dispute Resolution
(JDR) and to enter into stipulations or admissions of
facts and of documentary exhibits.
SEC. 13. Counterclaims Within the Coverage of this
Rule.— If at the time the action is commenced, the
defendant possesses a claim against the plaintiff that
(a) is within the coverage of this Rule, exclusive of
interest and costs; (b) arises out of the same
transaction or event that is the subject matter of the
plaintiff’s claim; (c) does not require for its adjudication
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SEC. 17. Appearance of Attorneys Not Allowed.—No
attorney shall appear in behalf of or represent a party
at the hearing, unless the attorney is the plaintiff or
defendant.
cause the dismissal with prejudice of both the claim
and counterclaim.
SEC. 19. Postponement When Allowed.—A request for
postponement of a hearing may be granted only upon
proof of the physical inability of the party to appear
before the court on the scheduled date and time. A
party may avail of only one (1) postponement.
If the court determines that a party cannot properly
present his/ her claim or defense and needs assistance,
the court may, in its discretion, allow another individual
who is not an attorney to assist that party upon the
latter’s consent.
Explanatory Note: A party may submit an oral or written request to
postpone a hearing date for good cause, as follows:
Explanatory Note: Except as permitted by this section, no attorney
shall appear in a small claims action except when the latter shall
maintain or defend an action in any of the following capacities:
1)
2)
(1) By or against himself or herself;
(2) By or against a partnership in which he or she is a
general partner and in which all the partners are
attorneys; or
(3) By or against a professional corporation of which he or
she is an officer or director and of which all other officers
and directors are attorneys.
3)
Nothing in this section shall prevent an attorney from doing any of
the following:
1)
2)
If the written request is in writing, it may be made either
by letter or on a form adopted or approved by the
Supreme Court;
The request shall be filed before the hearing date and
accompanied by proof of physical inability, unless the
court determines that the requesting party has good
cause to file the request on the date of hearing itself;
and
If the court finds that the interests of justice would be
served by postponing the hearing, the court shall do so
and shall notify all parties by mail on the same day of the
new hearing date, time and place.
This Section does not limit the inherent power of the court to order
postponements of hearings in strictly appropriate circumstances.
The postponement fee of One Hundred Pesos (or as provided in
Rule 141, Revised Rules of Court, as amended on Legal Fees) shall
be charged and collected before the filing of a request for
postponement and rescheduling of a hearing date.
Providing advice to a party to a small claims action,
either before or after the commencement of the action;
or
Submitting an affidavit as a witness for a party in order
to state facts of which he or she has personal knowledge
and about which he or she is competent to do so.
SEC. 20. Duty of the Court.—At the beginning of the
court session, the judge shall read aloud a short
statement explaining the nature, purpose and the rule
of procedure of small claims cases.
If the court determines that a party does not speak or understand
English or Filipino sufficiently to comprehend the proceedings or
give testimony, to the questions of the court, if any, and needs
assistance in so doing, the court may permit another individual
(other than an attorney) to assist that party. If the court interpreter
or other competent interpreter of the language or dialect known to
the party is not available to aid that party in a small claims action,
at the first hearing of the case the court shall postpone the hearing
one time only to allow the party the opportunity to obtain another
individual (other than an attorney) to assist that party. Any
additional continuances shall be at the sound discretion of the
court.
SEC. 21. Judicial Dispute Resolution.—At the hearing,
the judge shall conduct Judicial Dispute Resolution
(JDR) through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. Any settlement
(Form 7-SCC) or resolution (Form 8-SCC) of the dispute
shall be reduced into writing, signed by the parties and
submitted to the court for approval (Form 12-SCC).
SEC. 22. Failure of JDR.—If JDR fails and the parties
agree in writing (Form 10-SCC) that the hearing of the
case shall be presided over by the judge who conducted
the JDR, the hearing shall so proceed in an informal and
expeditious manner and terminated within one (1) day.
SEC. 18. Non-appearance of Parties.—Failure of the
plaintiff to appear shall be cause for the dismissal of the
claim without prejudice. The defendant who appears
shall be entitled to judgment on a permissive
counterclaim.
Absent such agreement, (a) in case of a multi-sala court,
the case shall, on the same day, be transmitted (Form
11-SCC) to the Office of the Clerk of Court for
immediate referral by the Executive Judge to the
pairing judge for hearing and decision within five (5)
working days from referral; and (b) in case of a single
sala court, the pairing judge shall hear and decide the
Failure of the defendant to appear shall have the same
effectas failure to file a Response under Section 12 of
this Rule. This shall not apply where one of two or more
defendants who are sued under a common cause of
action and have pleaded a common defense appears at
the hearing. Failure of both parties to appear shall
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case in the court of origin within five (5) working days
from referral by the JDR judge.
forthwith served on the parties. The decision shall be
final and unappealable.
Explanatory Note: In hearings before the small claims court,
witnesses shall still be sworn in. The judge shall conduct the
hearing in an informal manner so as to do substantial justice
between the parties. The judge shall have the discretion to admit
all evidence which may be of probative value although not in
accordance with formal rules of practice, procedure, pleading or
evidence provided in the Rules of Court, except that privileged
communications shall not be admissible. The object of such
hearings shall be to determine the rights of the litigants on the
merits and to dispense expeditious justice between the parties.
Explanatory Note: Despite the relative informality of the
procedure, judgments are based upon a strict application of the
substantive law and an objective judicial analysis of the facts. The
judge is duty-bound to give the legal basis for the findings. The
prohibition against appeals assures immediate and swift justice.
The right to appeal is not a natural right nor a part due process. It is
merely a statutory privilege and a procedural remedy of statutory
origin, a remedy that may be exercised only in the manner and in
accordance with the provisions of the law authorizing such
exercise.
An interventionist role by judges in such hearings is effective in
eliciting evidence from litigants in person. It is seen by
unrepresented parties as a “helping hand” which they appreciate,
provided that judges avoid the danger of appearing to be partial.
By discussing the facts of the case, judges find what common
ground does exist between the parties. This tends to narrow the
differences between the parties and make the final judicial decision
easier – whereas traditional open court trials, with the presence of
lawyers and the use of cross-examination tend to polarize the
parties, increase antagonism and heighten the differences.
The applicable provisions of the law allowing appeals from
decisions of the first level courts are Sections 36 and 38 of B.P. Blg.
129, as amended, also known as “The Judiciary Reorganization Act
of 1980.” The procedure on appeal is subject to the limitations and
restrictions provided by this Act and any such rules as the Supreme
Court may hereafter prescribe. Sec. 36 of B.P. Blg. 129 provides an
instance wherein the Supreme Court may adopt special
procedures, including cases where appeal may not be allowed, to
achieve an expeditious and inexpensive determination of particular
cases requiring summary disposition.
In this regard, Lord Woolf, Great Britain’s case management expert,
has observed:
SEC. 24. Execution.—If the decision is rendered in favor
of the plaintiff, execution shall issue upon motion
(Form 9-SCC).
“The role of the judge in small claims is not only that of
an adjudicator. It is a key safeguard of the rights of both
parties. In most cases, the judge is effectively a
substitute for a legal representative. His duty is to
ascertain the main matters at issue, to elicit the
evidence, to reach a view on the facts of the matter and
to give a decision.
SEC. 25. Applicability of the Rules of Civil Procedure.—
The Rules of Civil Procedure shall apply suppletorily
insofar as they are not inconsistent with this Rule.
SEC. 26. Effectivity.—This Rule shall take effect on
October 1, 2008 for the pilot courts designated to apply
the procedure for small claims cases following its
publication in two newspapers of general circulation.
In some cases he may encourage the parties to settle. In doing so
he should ensure that both parties have presented the evidence
and called the witnesses germane to their case and that he has
identified and considered any issue of law which is pertinent to the
case in hand. He must also hold the ring and ensure that each party
has a fair chance to present his own case and to challenge that of
his opponent.”
A.M. No. 08-8-7-SC
FORM 1-SCC
REPUBLIC OF THE PHILIPPINES
The key judicial skills in conducting such hearings are to maintain a
balance between informality and fairness, to ensure a level playing
field and to protect the weak and the scrupulous. In practice, this is
achieved by preventing interruptions and parties talking over each
other, and making it clear that both parties will have plenty of time
to say all that they wish before the end of the hearing.
_______________________________
_______________________________
_______________________________
__________________________,
SEC. 23. Decision.—After the hearing, the court shall
render its decision on the same day, based on the facts
established by the evidence (Form 13-SCC). The decision
shall immediately be entered by the Clerk of Court in
the court docket for civil cases and a copy thereof
Plaintiff,
vs. Civil Case No. ________________
For: ______________________
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__________________________,
_____ Promissory Note/Undertaking How many: _____
Defendant.
_____ Contract/Agreement
x- - - - - - - - - - - - - - - - - - - - - -x
_____ Receipt
STATEMENT OF CLAIM
_____ Others
Plaintiff respectfully alleges:
4. The principal obligation of defendant/s amounting to
P_____________________ became due and demandable on
______________.
1. The personal circumstances of the parties are as follows:
NAME OF PLAINTIFF/S SEX AGE CIVIL STATUS
Interest at the rate of ______% per annum/per month accrued on
the principal sum due from such date of default.
______________________ ______ _____ _________
INDIVIDUAL___ CORPORATION___
PROPRIETORSHIP ___
PARTNERSHIP___
5. Despite repeated demands by plaintiff, the latest of which was
on _______________, defendant has failed to pay the obligation.
SOLE
6. _____(a) This claim has been referred to the appropriate
barangay authorities but no settlement was reached between the
parties. A Certificate to
NAME
OF
REPRESENTATIVE:________________________________________
_
File Action was issued to the plaintiff, the original of which is
attached hereto.
ADDRESS ZIP CODE
___________________________________________________
_________
_____(b) The parties are not covered by the barangay mandatory
conciliation process under the Local Government Code of the
Philippines.
NAME OF DEFENDANTS//S SEX AGE CIVIL STATUS
Prayer
______________________ ______ _____ _________
NAME
OF
REPRESENTATIVE:
________________________________________
WHEREFORE, plaintiff respectfully prays for judgment to be
rendered ordering defendant to pay plaintiff the amount of
P________________________, with interest at the rate of ____%
per annum/ per month, from ___________, until fully paid.
___________________________; _____20___.
ADDRESS ZIP CODE
PLAINTIFF
___________________________________________________
_________
PLACE WHERE FILED
INDIVIDUAL___ CORPORATION__
PROPRIETORSHIP ___
_PARTNERSHIP___
SOLE
2. Plaintiff is suing defendant for:
FORM 1-A-SCC
CAUSE OF ACTION
VERIFICATION AND CERTIFICATION OF
_____ Collection of Sum of Money
NON-FORUM SHOPPING
_____ Damages
I, _________________________________, of legal age,
____________________ ______________________________, and
a
resident
of
__________________________________________________
,
after having been duly sworn to in accordance with law, hereby,
depose and say:
_____ Civil aspect of Criminal Case
_____ Enforcement of Barangay Agreement
Rule of Procedure for Small Claims Cases 13
1. That I am the _________________ in the above-entitled case
and have caused this ______________________________ to be
3. Plaintiff’s cause of action arose from and is evidenced by:
ACTIONABLE DOCUMENT/S AFFIDAVIT/S
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prepared; that I read and understood its contents which are true
and correct of my own personal knowledge and/or based on
authentic records;
____________________
2. That I have not commenced any action or proceeding involving
the same issue in the Supreme Court, the Court of Appeals or any
other tribunal or agency; that to the best of my knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of
Appeals or any other tribunal or agency, and that, if I should learn
thereafter that a similar action or proceeding has been filed or is
pending before these courts or tribunal or agency, I undertake to
report that fact to the Court within five (5) days therefrom.
You are hereby required, within ten (10) days from receipt of this
Summons, to file with this Court and serve on plaintiff, your
verified Response to the attached Statement of Claim. The form of
the required Response is attached hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this
____________
day
of
__________________,
20
__.
_______________________
You must present the original documents on the day of the
hearing. A motion to dismiss is prohibited and shall not be
entertained.
Affiant
Your failure to respond within the 10-day period will authorize the
Court to render judgment based solely on the Statement of Claim.
GREETINGS:
You are required to submit with your Response copies of
documents as well as affidavits of any witness to stand as your
evidence in this case.
SUBSCRIBED AND SWORN to before me this _________ day of
_____________, 20 ___ .
Witness my hand under the seal of this Court, this ____ day of
______, 20____, at _____________________, Philippines.
NOTARY PUBLIC
BRANCH CLERK OF COURT
(citizenship) (civil status)
(Name)
FORM 3-SCC
REPUBLIC OF THE PHILIPPINES
FORM 2-SCC
_______________________________
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
_______________________________
_______________________________
__________________________,
_______________________________
Plaintiff,
__________________________,
vs. Civil Case No. ______________
Plaintiff,
For: _______________________
vs. Civil Case No. ________________
__________________________,
For: ________________________
Defendant.
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant.
RESPONSE
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant/s respectfully allege/s:
SUMMONS
1. Defendant admits all the allegations in paragraph/s ________ of
the Statement of Claim.
TO: ____________________
2. Defendant specifically denies all the allegations in paragraphs
________ of the Statement of Claim.
____________________
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3. Defendant opposes the grant of the prayer in the Statement of
Claim for the following reasons, as supported by the attached
documents and affidavits:
Defendant.
(enumerate defenses)
NOTICE OF HEARING
4. As the Statement of Claim is baseless, defendant is entitled to
the following counterclaims:
Once issues are joined upon the filing of the defendant’s Response,
this case will be called for Judicial Dispute Resolution (JDR) and
hearing before the Presiding Judge of this Court on
__________________ at ___________.
x- - - - - - - - - - - - - - - - - - - - - -x
_____ Actual Damages of P______________________
_____ Moral Damages of P______________________
Failure of the plaintiff to appear at the JDR and hearing shall cause
the dismissal of the Statement of Claim, and the defendant who
appears shall be entitled to a judgment on his counterclaim. On the
other hand, failure of the defendant to appear at the JDR and
hearing shall cause the Court to render judgment based solely on
the Statement of Claim.
_____ Exemplary Damages of P_____________________
_____ Costs of suit
Prayer
_____ Actual Damages of P______________________
A party may not be represented by a lawyer, but may authorize any
other representative to appear in his behalf and participate in all
the proceedings as if the party represented were present. For this
purpose, the required authority should be evidenced by
accomplishing the attached Form 5-SCC (Special Power of
Attorney).
_____ Moral Damages of P______________________
WITNESS the HON. _________________________, Presiding Judge
_____ Exemplary Damages of P_____________________
of this Court, this ____ day of _____________, 20___, at
__________________________, Philippines.
WHEREFORE, defendant respectfully prays for judgment to be
rendered dismissing the Statement of Claim, and granting the
counterclaims, ordering plaintiff to pay defendant the following
sums:
_____ Costs of suit
BRANCH CLERK OF COURT
DEFENDANT
(VERIFICATION AND CERTIFICATION
FORM 5-SCC
OF NON- FORUM SHOPPING, if with permissive counterclaim)
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
FORM 4-SCC
I, _______________________, of legal age, single/married, with
residence at ___________________________ do hereby appoint,
name and constitute ________________________________,
likewise of legal age, singe/married, with residence at
________________________________ as my true and legal
representative to act for and in my name and stead and to
represent me during the hearing of Civil Case No. __________, to
enter into amicable settlement, to submit to alternative modes of
dispute resolution and to make admissions or stipulations of facts
and documents without further consultation from me.
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
_______________________________
__________________________,
Plaintiff,
I hereby grant my representative full power and authority to
execute and perform every act necessary to render effective the
power to compromise as though I myself have so performed it and
hereby approving all that he may do by virtue of these presents.
vs. Civil Case No. ______________
For: _______________________
In witness whereof, I hereunto set my hand this ______ day of
____________________, 20_______, at ________________.
__________________________,
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_____________________________
5. Should the court render judgment in my favor, the amount of
the docket and other legal fees which I was exempted from paying
shall be a lien on the judgment, unless the court orders otherwise.
Principal
_____________________
WHEREFORE, premises considered, it is respectfully prayed that I
be exempted from the payment of docket and other legal fees as
indigent pursuant to Section 21, Rule 3 in relation to Section 18,
Rule 141 of the Revised Rules of Court.
Agent
Witnesses:
___________________________
________________________
Other reliefs just and equitable under the premises are likewise
prayedfor.
(ACKNOWLEDGMENT)
PLAINTIFF
FORM 6-SCC
FORM 7-SCC
REPUBLIC OF THE PHILIPPINES
REPUBLIC OF THE PHILIPPINES
_____________________________
_______________________________
_____________________________
_______________________________
_____________________________
_______________________________
__________________________,
__________________________,
Plaintiff,
Plaintiff,
vs. Civil Case No. ______________
vs. Civil Case No. ______________
For: _______________________
For: _______________________
__________________________,
__________________________,
Defendant.
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
x- - - - - - - - - - - - - - - - - - - - - -x
MOTION TO PLEAD AS INDIGENT
MOTION FOR APPROVAL OF COMPROMISE AGREEMENT
_____________________, unto this Honorable Court, respectfully
alleges that:
The parties respectfully allege that:
1. I am a resident of ___________________;
1. Plaintiff filed this claim against defendant for:
2. My gross income and that of my immediate family does not
exceed __________________ ;
_____________ collection of sum of money
_____________ damages
3. I do not own real property with an assessed value of more than
(amount as provided in the Revised Rules of Court, as amended) as
shown by the attached Certification issued by the Office of the
City/Municipal Assessor and the City/Municipal Treasurer’s Office;
_____________ civil aspect of criminal case
_____________ enforcement of barangay agreement
4. Due to financial constraint, I cannot afford to pay for the
expenses of a court litigation as I do not have enough funds for
food, shelter and other basic necessities;
_____________ recovery of personal property
2. The parties have come to an amicable settlement and have
executed a compromise agreement with the following terms and
conditions. (copy terms and condition here)
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3. The parties agree that the approval of this agreement by the
Court shall put an end to this litigation, except for purposes of
execution in case of default.
_______________________________________, 20_______.
_____________________________
____________________________
WHEREFORE, premises considered, the parties respectfully pray
that the court approve this agreement and render judgment on the
basis thereof.
Plaintiff Defendant
To the Branch Clerk of Court:
_______________________________________, 20_______.
_______________________ ________________________
Please submit the foregoing motion for the consideration of the
Court without hearing and further argument from the parties.
Plaintiff Defendant
__________________________ _________________________
Plaintiff Defendant
FORM 8-SCC
(Motion for voluntary dismissal of the claim and counterclaim)
FORM 9-SCC
REPUBLIC OF THE PHILIPPINES
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
__________________________,
__________________________,
Plaintiff,
Plaintiff,
vs. Civil Case No. ______________
vs. Civil Case No. ______________
For: _______________________
For: _______________________
__________________________,
__________________________,
Defendant.
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
x- - - - - - - - - - - - - - - - - - - - - -x
JOINT MOTION
MOTION FOR EXECUTION
Plaintiff and defendant, unto this Honorable Court, respectfully
allege that:
Plaintiff/Defendant, unto this Honorable Court, respectfully alleges
that:
1. Plaintiff and defendant have mutually and voluntarily settled
their claim and counterclaim to the entire satisfaction of each
other; and
1. On _______________, a judgment was rendered by the Court,
the dispositive portion of which reads:
2. The judgment is final and unappealable.
2. The parties no longer have a cause of action against each other.
3. The defendant/plaintiff has not complied with the judgment.
WHEREFORE, premises considered, plaintiff and defendant
respectfully pray that the plaintiff’s statement of claim and
defendant’s counterclaim incorporated in his response be
dismissed.
WHEREFORE, premises considered, it is respectfully prayed that a
writ of execution be issued to implement the judgment of the
Court dated __________________.
Other reliefs just and equitable under the premises are likewise
prayed for.
_______________________________________, 20_______.
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_____________________________
Plaintiff Defendant
Plaintiff/Defendant
NOTICE OF HEARING
FORM 11-SCC
NAME OF DEFENDANT
(Referral to pairing judge)
(IF FILED BY PLAINTIFF)
REPUBLIC OF THE PHILIPPINES
NAME OF PLAINTIFF
_______________________________
(IF FILED BY DEFENDANT)
_______________________________
NAME OF CLERK OF COURT.
_______________________________
Please be notified that the undersigned will submit the foregoing
motion for the consideration and approval of the Court on
_________________
at
_______________________________________,
20_______.
________________________
__________________________,
Plaintiff/Defendant
For: _______________________
Plaintiff,
vs. Civil Case No. ______________
__________________________,
FORM 10-SCC
Defendant.
REPUBLIC OF THE PHILIPPINES
x- - - - - - - - - - - - - - - - - - - - - -x
_______________________________
ORDER
_______________________________
Plaintiff,
In view of the failure of judicial dispute resolution and there being
no agreement from the parties to let the undersigned continue
hearing the instant case, the record of this case is transmitted to
the Office of the Clerk of Court for immediate referral by the
Executive Judge to the Pairing Judge for hearing and decision
pursuant to Section 21 of the Rule of Procedure for Small Claims
Cases.
vs. Civil Case No. ______________
SO ORDERED.
For: _______________________
_______________________________________, 20_______.
__________________________,
______________________________
Defendant.
JUDGE
_______________________________
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
AGREEMENT
FORM 12-SCC
Having failed to resolve the matter through Judicial Dispute
Resolution, plaintiff and defendant hereby agree that Judge
_________________ shall continue with the hearing on the instant
matter and hereby waive their right to have a different judge hear
the
case.
_______________________________________,
20_______.
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
_______________________________
___________________________ _______________________
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__________________________,
vs. Civil Case No. ______________
Plaintiff,
For: _______________________
vs. Civil Case No. ______________
__________________________,
For: _______________________
Defendant.
__________________________,
x- - - - - - - - - - - - - - - - - - - - - -x
Defendant.
DECISION
x- - - - - - - - - - - - - - - - - - - - - -x
This is a small claims action for (state which of the claims or
demands below is the subject of the action filed):
DECISION BASED ON COMPROMISE AGREEMENT
[For money owed under any of the following:
Plaintiff
filed
this
case
_____________________
in
________________________.
against
the
defendant
amount
for
of
1. Contract of lease;
2. Contract of loan;
Defendant denied plaintiff’s claim
_________________ and set up
_______________________.
on the ground of
a counterclaim for
3. Contract of services;
4. Contract of sale; or
The parties, however, reached an amicable settlement and
submitted to the court a compromise agreement, the terms and
conditions of which are as follows:
5. Contract of mortgage;
For damages arising from:
It appearing that the agreement is not contrary to law, morals,
good customs, public moral and public policy, and pursuant to
Articles 2028 and
1. Fault or negligence;
2. Quasi-contract; or
2037 of the Civil Code of the Philippines, the same is hereby
APPROVED and ADOPTED as the Decision of this court.
3. Contract;
The parties are hereby ordered to faithfully comply with the terms
and conditions of the agreement.
The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by this
Rulepursuant to Section 417 of Republic Act 7160, otherwise known
as The Local Government Code of 1991].
_______________________________________, 20_______.
Plaintiff alleges that (state material allegations and prayer in the
Statement of Claim).
________________________
JUDGE
Defendant alleges that (state reasons for denial of the claim and
other material allegations in the Response including counterclaims,
if any).
FORM 13 – SCC
On (date), both parties appeared during the hearing conducted by
(state name of Judge who conducted the JDR. State whether
parties appeared personally or through a specially authorized
representative).
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
Considering the failure of the parties to arrive at any settlement of
the dispute, this court proceeded with the hearing of the case
which was terminated on __________________.
_______________________________
__________________________,
The issue to be resolved by this court is whether
_______________________________________________________
______.
Plaintiff,
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Plaintiff’s evidence consists of: (state documents of plaintiff,
affidavits submitted, if any, and statements made by plaintiff and
witnesses under oath during the hearing).
foreign legal systems but which has yet to be tried in the
Philippines is the small claims case processing method used by
small claims courts, often referred to as the “People’s Court,” as it
comes most directly into contact with the citizenry of a jurisdiction.
Defendant’s evidence consists of: (state documents of defendant,
affidavits submitted, if any, and statements made by defendant
and witnesses under oath during the hearing).
Small claims courts are courts of limited jurisdiction that hear civil
cases between private litigants. Courts authorized to try small
claims may also have other judicial functions, and the name by
which such a court is known varies by jurisdiction: it may be known
by such names as county court or magistrate’s court. Small claims
This court finds that the claim of plaintiff (or defendant in a
counterclaim) is (state whether meritorious or devoid of merit)
under Article/Section (state the applicable provisions of law) or
pursuant to established jurisprudence (cite applicable
jurisprudence). In this case, this court found that (state first the
factual findings established by the evidence and then the legal
conclusions).
courts can be found in Australia, Canada, Ireland, Israel, New
Zealand, South Africa, Hong Kong, Singapore, the United Kingdom
and the United States.
B. The History and the Reforms of Small Claims Court
Wherefore, the (claim/counterclaim) is (granted/denied). This
court
orders
____________________
to
pay
to
_______________________ the amount of (state the monetary
award or damages) with interest of (if applicable under Civil Code
and/or settled jurisprudence) until fully paid.
1.
In the United States – For almost a century now, small
claims courts have provided a form of alternative dispute
resolution (ADR) in the United States.
Originating around 1912 or 1913, these courts were
established primarily as a means for small businesses to
collect money from borrowers through a process that was
faster, less formal, and less expensive than traditional civil
litigation. Following the lead of the establishment of the initial
small claims court in Kansas, USA in 1912 or 1913, every state
in the United States has created some form of a small claims
court system.
SO ORDERED.
(Date of decision.)
(Signature)
Presiding Judge (or Pairing Judge in the absence of written
agreement of theparties that the case shall beheard by the
Presiding Judgewho conducted the JDR)
Although the financial claims limits, methods of procedure,
and overall structure vary from state to state, the concept is
essentially the same, i.e., that relatively minor disputes,
involving dollar amounts that are insufficient to warrant
processing the case through the normal court procedure,
justify expeditious and simplified handling.
Copy furnished:
All parties
Office of the Clerk of Court of ____________
The consumer justice reform movements of the 1960s and
1970s brought renewed research and interest in the small
claims courts. This movement emphasized the need for
reform of small claims courts to facilitate the adjudication of
consumer grievances.
RATIONALE of the Proposed Rule of Procedure for Small Claims
Cases
A. Introduction
Although “consumer justice reformers” were concerned that
businesses and corporations were more likely to use attorneys in
small claims courts thereby placing inexperienced individual
defendants at a disadvantage, studies showed that defendants with
an attorney were more likely to win against plaintiffs than
unrepresented defendants, whereas plaintiffs without attorneys
did just as well as represented plaintiffs against unrepresented
defendants.
The most significant recurring theme of every program for judicial
reform of the Supreme Court is the pressing need for a more
accessible, much swifter and less expensive delivery of justice.
Undeniably, the slow grind of the wheels of justice is the result of a
variety of factors, foremost of which is the perennial congestion of
court dockets which has transformed court litigation into a
protracted battle, that invariably exhausts the time, effort and
resources of party-litigants, especially the poor. Many strategies
have been devised to unclog heavy court dockets, and one such
approach is the use of mandatory Pre-trial and Alternative Dispute
Resolution mechanisms such as mediation, arbitration and
conciliation. Another scheme that has been widely used in many
The result was an appraisal of the need to bar attorneys and
collection agencies from the small claims courts.
Small claims courts in the United States are often considered courts
of equity and are not necessarily bound by the letter of the law.
These courts have flexibility to use more holistic approaches to
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problem solving and dispute resolution than what is typical. Most
judges act according to what makes sense to them, even if this
means setting aside legal formalities. Moreover, traditional rules of
evidence and court processes do not apply.
expected to play the role of “interventionist” and assist litigants in
presenting their own cases personally at small claims hearings. Like
adjudicators in other parts of the world, district judges in these
countries have been encouraged to intervene to an increasing
extent at small claims hearings. Such interventionism is, indeed,
vital and although there may be wide variations between
jurisdictions in the methods that are adopted to deal with small
claims, the idea of the adjudicator freely entering the arena of the
dispute to assist unrepresented litigants is fundamental in almost
all matters about small claims.
The rules of small claims courts emphasize conciliation and
pragmatism over winning, and rules of evidence and civil procedure
have been simplified to allow maximum access to the courts by
individuals unable to afford an attorney.
2.
Small Claims Courts in Canada – All provinces in Canada
have procedures for small claims. In general, there are
two different models. In most provinces, as in British
Columbia, Alberta, and new Brunswick, small claims
courts operate independently of the superior courts. In
other jurisdictions, the small claims courts are either
branches or divisions of the superior courts
4.
The small claims courts are meant to be an easier and less
expensive way to resolve disputes than in the superior courts.
Small Claims Court procedure is regulated both by provincial
legislation and rules in most provinces. It is simplified and less
costly with no strict pleading requirements and formal
discovery process.
3.
Small Claims Courts in England and Wales – From early
times, England had a tradition of local courts where
ordinary men could pursue justice in the form of civil
claims without the aid of lawyers. Some were set up by
local statutes, others by custom. These local courts could
not keep pace with the changes in society brought about
by the Industrial Revolution. By the 1830s, the decade of
great liberal reform, there was a great public awakening
to the urgent need for constitutional reform in the
administration of justice. The result was the County
Courts Act of 1846, described in its preamble as an “Act
For The More Easy Recovery of Small Debts and
Demands in England.” It was initially a poor man’s court.
Andrew Amos, the first judge at Marylebone County,
described regular litigants as being “a great proportion
of the poorer classes, gaining their livelihoods by
bricklaying, gardening or other out of door occupations
and who subsist upon credit in the winter months, and
complaints against whom are usually issued in the
summer months.” The county court’s jurisdiction for
claims brought in contract and tort gradually increased
from £50 in 1888 to £5,000 in 1984.
The purpose and structure of the county court system has in many
ways remained the same since 1846. The aim is still to make civil
justice available locally – there are now 223 county courts in
England and Wales. They have continued to be responsive to the
needs of smaller cases which, although small in terms of their
financial value, are important to the litigants involved. However,
recent decades have seen two major changes in relation to small
claims – first, the introduction of a dedicated small claims
procedure in 1973 and secondly, the introduction of the Civil
Procedure Rules reforms of 1998 with emphasis on proportionality.
Since January 1996, when the small claims limit in England and
Wales was trebled overnight to £3,000, district judges have been
60
Small Claims Tribunals in Singapore – The Small Claims
Tribunals in Singapore have been in operation since 1
February 1985. The Tribunals have fulfilled an integral
role in providing the community with accessible justice
for civil claims involving small amounts. Various features
and programs have been put in place to enhance access
to justice for the community, by removing barriers such
as cost, delay, distance, time and inconvenience. The
Tribunals, constituted as part of the Subordinate Courts
of Singapore, were established for the primary purpose
of providing a quick and inexpensive avenue for the
resolution of small claims arising from disputes between
consumers and suppliers. There was a need for a less
expensive and less formal forum to deal with such small
claims. Hence, in 1985, the Small Claims Tribunals Act
was passed, which authorized the setting up of one or
more Tribunals to help consumers who have claims of up
to $2,000 relating to disputes arising from contracts for
the sale of goods or the provision of services.
CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Rule 01
How come it mentions criminal cases and defines criminal actions
when it is supposed to be 1997 Rules on Civil Procedure?
GENERAL PROVISIONS
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.’
SECTION 1. Title of the Rules. These Rules
shall be known and cited as the Rules of
Court.
The Rules of Court do not have retroactive
effect. They can, however, be made
applicable to cases pending at the time of
their passage and therefore are retroactive in
that sense.
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.
The rule-making power of the SC has the following
limitations:
1)
2)
3)
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.
Simplified and inexpensive procedure for the
speedy disposition of cases;
Uniform for all courts of the same grade; and
Shall not diminish, increase or modify
substantive rights (Art. VIII Sec. 5[5], 1987
Constitution.
xxxxx
In the interest of just and expeditious
proceedings, the Supreme Court may
suspend the application of the Rules of
Court and except a case from its
operation because the Rules were
precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice.
What is an action?
An action is the legal and formal demand of one’s right from
another person made and insisted upon in a court of justice.
(Bouvier’s Law Dictionary)
One party prosecutes another for the enforcement or protection of
a right or the prevention or redress of a wrong.
SEC. 2. In what courts applicable. These
Rules shall apply in all the courts, except
as otherwise provided by the Supreme
Court.
What is a claim?
It is a right possessed by one against another.
The moment said claim is filed before a court, the claim is
converted into an action or suit.
Section 2, states in what court or courts the rules apply as it says
“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.
Action and suit
In this jurisdiction, it is settled that the terms “action” and “suit”
are synonymous. (Lopez v. Compania de Seguros, 16 SCRA 855).
For example: The SUMMARY RULES on procedure which is
applicable to some cases in the MTC.
Civil Action and Criminal Action
Another example of when the SC says 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. This is actually not a
new provision. It used to be in Rule 143, now it is in Rule 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. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to
enforce or protect your right or to prevent or redress a wrong.
Sec. 3. Cases governed. These Rules shall
govern the procedure to be observed in
actions, civil or criminal, and special
proceedings.
A criminal action “is one by which the State prosecutes a person for
an act or omission punishable by law” (Sec. 3[b] Rule 1)
It has been ruled that …”proceedings are to be regarded as criminal
when the purpose is primarily punishment, and civil when the
purpose is primarily compensatory…” (People vs. Godoy @$# SCRA
64).
xxxxxx
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CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
CLASSIFICATION OF CIVIL ACTION
I.
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
As to NATURE (Section 3 [a])
a.) Ordinary Civil Actions
b.) Special Civil Actions
AMBERTI vs CA - 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. Later on he
changed his mind and 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?
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
IV. As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem
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.
I. CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. Any action
not among those mentioned is automatically ordinary.
What are the special civil actions?
“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.”
Rules 62 to 71:









Interpleader,
Declaratory Relief,
Certiorari, Prohibition, Mandamus,
Quo Warranto,
Expropriation,
Foreclosure of Mortgage,
Partition,
Forcible Entry, Unlawful Detainer and
Contempt.
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.
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 which governs Certiorari.
CLASSIFICATION AS TO CAUSE OR FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
Real Action
Q: What is so important in distinguishing a special civil action from
an ordinary civil action?
A REAL ACTION is briefly described as an action where the issue or
the subject involved is title to, ownership, possession of or interest
over a real property like accion publiciana, forcible entry, unlawful
detainer, foreclosure of mortgage or real property, partition of real
property. (Sec. 1, R 4) (c.f. Section 19, BP 129 – controversy relates
to real property)
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.
It is founded on privity of real estate and filed in the court of the
place where the property or any part thereof is situated.
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.
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CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

Personal action
All other actions or, 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 arising from breach of a
contract, or 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)
However, where a complaint is denominated as one of specific
performance but nonetheless prays for the issuance of a deed of
sale for a parcel of land for the plaintiff to acquire ownership of the
land, its primary objective and nature is one to recover the parcel
of land itself and thus, is deemed a real action. (Gochan v. Gochan,
372 SCRA 356)
It is filed in the court where the plaintiff or any of the defendants
resides, at the option of the plainitff.

If the action is denominated as one for specific
performance, but the plaintiff actually seeks for the
issuance of a deed of assignment in his favor of certain
shares of stocks to regain ownership and possession of said
shares, the action is not one for specific performance but a
personal action for the recovery or property. The docket
fee therefore, should be computed based on the value of
the property and not based on the docket fee for specific
performance (National Steel Corporation vs. CA 302 SCRA
522).

Where it is alleged in the complaint that the defendant
breached the contract so that the plaintiff prays that the
contract be rescinded and that the defendant be ordered to
return possession of the hacienda to the plaintiff, the
ultimate purpose or end of the action is to recover
possession of real property and not a mere breach of
contract (De Jesus vs. Coloso 1 SCRA 272)

Where the action to annul or rescind a sale of real property
has as its fundamental and prime objective the recovery of
real property, the action is real (Emergency Loan Pawnshop
Inc. vs. CA 353 SCRA 89).

Where an award of a house and lot to the plaintiff was
unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot is a
personal action. The action does not involve title to
ownership or possession of real property. The nature of the
action is one to compel the recognition of the validity of the
previous award by seeking a declaration that the
cancellation is null and void. (Hernandez v. DBP, 71 SCRA
290)

An action to foreclose a real estate mortgage is a real
action, but an action to compel the mortgagee to accept
payment of the mortgage debt and to release the mortgage
is a personal action. (Hernandez v. Rural Bank of Lucena,
Inc. 81 SCRA 75)

An action to annul a contract of loan and its accessory real
estate mortgage is a personal action. In a personal action,
the plaintiff seeks the recovery of personal property, the
enforcement of a contract or the recovery of damages. In
contrast, in a real action, the plaintiff seeks the recovery of
real property, or, as indicated in Section 2(a), Rule 4 of the
then Rules of Court, a real action is an action affecting title
to real property or for the recovery of possession, or for
partition or condemnation of, or foreclosure of mortgage
on, real property (Chua vs. Total Office Products and
Services [Topros], Inc.,471 SCRA 500).
Mixed Action
Some textwriters 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 it is a
mixed action. However, 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.
In a real action realty or an interest therein is the subject matter of
the action.
However, not every action involving a real property is a real action
because the realty may only be incidental to the subject matter of
the suit. To be a “real” action, it is not enough that the action must
deal with real property. It is important that the matter in litigation
must also involve any of the following issues: title to, ownership,
possession, partition, foreclosure of mortgage or any interest in
real property.
Examples:



An action for specific performance is a personal action as
long as it does not involve a claim of or recovery of
ownership of real property. (Siosoco v. CA, 303 SCRA 186
citing La Tondena Distillers v. Ponferrada, 264 SCRA 540)
An action for damages to real property, while involving a
real property, does not involve any of the issues
mentioned.
An action to recover possession of real property plus
damages is a real action because possession of the real
property is involved. The aspect of damages is merely an
incidental part of the main action, i.e., recovery of
possession of real property. However, an action to
recover possession of a personal property is a personal
action.
Where the allegations as well as of the complaint do not
claim ownership of the lots in question or ask for
possession of the same but instead seeks for the
execution of a deed of sale by the defendants in favor of
the plaintiff, the action is a personal action. (Adamos v. J.
M. Tuazon & Co., Inc. 25 SCRA 529)
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CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
LOCAL ACTIONS and TRANSITORY ACTIONS


Although the main relief sought in the action is the delivery
of the certificate of title, said relief, in turn depends upon
who, between the parties, has a better right to the lot in
question. It is not possible for the court to decide the main
relief without passing upon the claim of the parties with
respect to the title to and possession of the lot in question.
The action is a real action (Espineli vs. Santiago 107 Phil
830).
LOCAL ACTION is an action which can only be instituted in a
particular place.
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.)
Where the sale is fictitious, with absolutely no
consideration, it should be regarded as a non-existent
contract. There being no contract between the parties,
there is nothing in truth to annul by action. The action,
therefore, cannot be an action for annulment but one for
recovery of a fishpond, a real action (Pascual vs. PASCUAL
73 Phil. 561).
TRANSITORY ACTIONS are those which follow the party wherever
he may reside. (1 Am. Jur. 430) Personal actions are transitory – its
filing 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.
Significance of the distinction
CLASSIFICATION AS TO OBJECT OR PURPOSE
The distinction between a real action and a personal action is
important for the purpose of determining the venue of the action.
Questions involving the propriety or impropriety of a particular
venue are resolved by initially determining the nature of the action,
i.e., if the action is personal or real.
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
Definition
In personam action
A real action is “local”, i.e., its venue depends upon the location of
the property involved in the location. “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 apportion
thereof is situated.” (Sec. 1 Rule 4)
“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)
A personal action is ‘transitory,’i.e., its venue depends upon the
residence of the plaintiff or the defendant at the option of the
plaintiff. A personal action “may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides or where the
defendant or any of the principal defendants resides, or in the case
of a non-resident defendant, where he may be found, at the
election of the plaintiff.” (Sec. 2 Rule 4).
An example is an action for specific performance; action for
breach of contract
In rem action
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)
Hence, if the question involves the venue of an action, the analysis
will necessarily involve the following steps:
(a) A determination whether the action is real or personal
(b) An application of the rules on venue under Rules 4.
Thus, an action for a sum of money, instituted by a resident of
Manila against a resident of Quezon City, shall be filed either in
Manila or Quezon City at the election of the plaintiff because the
action is personal.
An example is a probate proceeding, cadastral proceeding.
The purpose of a proceeding in personam is to impose
through the judgment of a court, some responsibility or
liability directly upon the person of the defendant (Domagas
vs. Jensen 448 SCRA 663)
An action to annul a sale of a land located in Baguio City where
recovery of ownership is essentially the material issue in the case,
must be filed in Baguio City. The action is a real action and must be
filed in the place where the property is situated regardless of the
residence of the parties (Emergency Loan Pawnshop Inc. vs. CA 353
SCRA 89).
Examples:
A) An action for sum of money;
B) An action for damages.
CLASSIFICATION AS TO THE PLACE OF FILING:
64
CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
In an action in personam, no other than the defendant is
sought to be held liable, not the whole world.
A: No it binds the whole world or anybody.
2)
To simplify the definition:
ACTION IN PERSONAM is one where the purpose is to bind the
parties or where 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.
Take note that an action in rem and in personam have often
been confused with the classification of real and personal
action, that an action in personam is also a personal action,
or, when an action is in rem it is also a real action.
ACTION IN REM is one where the purpose is to bind any and
everyone or where the judgment which 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.
It is wrong. The basis of the classification is different. An
action could be as to cause or basis a real action. As to
object, it could be in personam. In the same manner, it
could be a personal action but an action in rem.
To follow the language of the SC in the case of:
3)
E files a case against C to recover the possession of a piece
of land. It is a REAL action because the subject is possession
or ownership of real property. But because the purpose is
to bind only E and C it is also an action IN PERSONAM. It is a
real action as to cause, but as to object, it is in personam.
4)
P filed a case to annul his marriage with his wife D. It is a
PERSONAL action because it does not involve title to,
ownership etc., of his real property. It is about status. But it
is also IN REM because the judgment therein is binding
against the whole world.
5)
An action for ejectment is a real action because it involves
the issue of possession of real property. It is also, however,
an action in personam because the action is directed
against a particular person who is sought to be held liable
(Sec. 1 Rule 4; Domagas vs. Jensen 448 SCRA 663)
6)
An action for delaration of nullity of a marriage is a
personal action (Tamano vs. Ortiz 291 SCRA 584;
Romualdez-Licaros vs. Licaros 401 SCRA 762) because it is
not founded on real estate. It is also in rem action because
the issue of the status of a person is one directed against
the whole world. One’s status is a matter that can be set up
against anyone in the world. On the other hand, an action
for damages is both a personal and in personam action.
7)
An action for specific performance is an action in personam
(Jose vs. Boyon 414 SCRA 217). An action for specific
performance and/or rescission is not an action in rem
(Gomez vs. CA 425 SCRA 98).
8)
A cadastral proceeding is an action in rem (In Re Estate of
Johnson 39 Phil. 156).
9)
A land registration proceeding is an action in rem. Hence,
the failure to give a personal notice to the owners or
claimants of the land is not a jurisdictional defect. It is the
publication of such notice that brings in the whole world as
a party in the case and vests the court with jurisdiction
(Adez Realty Inc. vs. CA 212 SCRA 623; Ting vs. Heirs of
Diego Lirio 518 SCRA 263).
CHING vs. CA – 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:
An action for the Recovery of land or accion publiciana.
The case is filed by P against D and after trial the court rendered
judgment in favor of P ordering D to deliver the land to P. But here
comes X claiming the same property. Is X barred from making his
claim because the court, in the case of P vs. D already declared that
P is entitled to the property? Is X bound by that judgment?
A: NO, because X is not a party to that case. She cannot be bound
by a judgment where she is not a party. Hence, the action between
P and D is an action in personam.
Action in Rem
1)
When an illegitimate child files a case against the father,
for compulsory recognition and got a favorable judgment
his/her status as a recognized child is not only binding on
his/her father but is binding on the whole world.
Action for annulment of marriage or declaration of nullity
of marriage. Suppose the husband (H) files a case against
his wife (W) to annul their marriage. After trial, the court
rendered judgment annulling the marriage and it became
final. So the parties are now both SINGLE.
H meets another girl, A, and courted her and proposed
marriage.
Can A say the she I cannot marry H because I know you
are married and as far as I am concerned I am not bound
by the judgment of annulment in the case between P
and D because she was a not a party therein? When the
court ruled in the case between H and W that the
marriage is annulled is that judgment binding only on H
and W, the parties therein
10) An action to recover real property is a real action. It is
however, also an action in personam for it binds only a
particular individual (Republic vs. CA 315 SCRA 600)
65
CIVIL PROCEDURE NOTES COMPILED
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
QUASI IN REM
If the action is in personam the court must acquire jurisdiction over
the person of the defendant, thru personal service of summons.
Service of summons by publication is not allowed.
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.
But if it is in rem jurisdiction over the person of the defendant is
not required hence service of summons by publication is sufficient.
Q: Define an action quasi in rem.
Such is also true to quasi in rem action. What is important is that
the court acquires jurisdiction over the res.
A proceeding to subject the interest of a named defendant over a
particular property to an obligation or lien burdening it. Judgment
is binding upon particular persons.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
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 or 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.
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)
An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his
interest thereof to the obligation or lien burdening thje property
(Asiavest Limited vs. CA 296 SCRA 539).
Special proceedings should not be confused with a civil action.
Special Proceedings are governed by Rules 72-109 of the Rules of
Court.
The object of an action quasi in rem is the sale or disposition of the
property whether by attachment, foreclosure or any other form of
remedy (Banco Espanol-Filipino vs. Palanca 37 Phil. 921).
Distinguish a civil action from a special proceeding.
A: The following:
Examples of actions quasi in rem:
1.)
(a) Action for partition;
(b) Action for accounting.
(c) Such actions are essentially for the purpose of affecting
the defendant’s interest in the property and not to
render a judgment against him (Valmonte vs. CA 252
SCRA 92);
(d) attachment;
(e) foreclosure of mortgage (Banco Espanol Filipino vs.
Palanca 37 Phil. 921; Sahagun vs. CA 198 SCRA 44).
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;
2.)
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 the person who mortgaged to you but once the property is
foreclosed, practically everybody has to respect it. That’s why it is
called quasi in rem.
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.)
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.’
A CIVIL ACTION requires the filing of formal
pleadings, whereas
In a SPECIAL PROCEEDING, relief may be obtained
by mere application or petition;
Importance of the distinction
4.)
It determines whether the court must acquire jurisdiction over the
person of the defendant and thus determine the mode of serving
summons.
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The period to appeal in CIVIL ACTIONS is generally
15 days and the requirement is the filing of a
notice of appeal, whereas
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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.
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)
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.
The Rules of Court do not apply to certain proceedings in court.
Q: What court proceedings where the Rules of Court are not
applicable?
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: 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.
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 paternity and filiation between the adopter and adopted
who may not be related to each other.
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.
What is adoption?
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.
This is how an author describes it.
“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.”
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 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)
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.
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.
And when you file a petition for adoption, you are not filing a case
against anybody. The case is not a fight between two parties.
There is a petitioner, the one who files, but there is no definite
defending 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 of the adopted as a
child of the adopter. It is in rem. Generally, special proceedings are
in rem.
Civil actions are deemed commenced from the date of the filing
and docketing of the complaint, without taking into account the
issuance and service of summons (Cabrera vs. Tiano, GR No. L17299, July 31, 1963).
But since it is directed against the whole world, anyone in the
world can come forward and oppose the petition, hence,
publication is required. There is no particular person as defendant
but in reality, anybody in the world can come forward and oppose
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If the complete amount of the docket fee is not paid, the
prescriptive period continues to run as the complaint is deemed
not filed (Feria, 2001, p. 208)
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.
An action can be commenced by filing the complaint by registered
mail, in which case, it is the date of mailing that is considered as
the date of filing and not the date of the receipt thereof by the
clerk of court.
In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s
thrust.” (Alonzo vs. Villamor, 16 Phil. 315)
That’s why the SC said in another case:
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…”
SANTOS vs. CA – 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.”
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.
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.
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)
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?
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.
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL – 77 Phil. 523
Cases should, as much as possible, be determined on the merits
after the parties have been given full opportunity to ventilate their
causes and defences, rather than on technicality or some
procedural imperfection. After all, technical rules of procedure are
not ends in themselves but are primarily devised to help in the
proper and expedient dispensation of justice. In appropriate cases,
therefore, the rules may be construed liberally in order to meet
and advance the cause of substantial justice (Land Bank vs. Celad,
GR No. 164876, Jan. 23, 2006)
HELD: Lapses in the literal observance of a rule of procedure
will be overlooked:
1)
2)
3)
4)
DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171
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.”
when they do not involve public policy;
when they arose from an honest mistake or
unforeseen accident;
when they have not prejudiced the adverse party;
and
when they have not deprived the court of its
authority.
One final note, while it is true that the Rules of Court should be
liberally construed as a general rule, there are certain provisions
which according to the SC, should be strictly construed because
they were intended precisely to minimize delay. These are
provisions on:
1)
2)
3)
reglementary periods;
rule on forum shopping;
service of summons
A good example would be provisions which prescribe the time
during which certain acts are going to be done, like the filing of an
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answer, because if you will disregard this, it will promote more
delay rather than expedite litigations.
Another example is the filing of a notice of appeal. 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. CA – 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. CA– 170 SCRA 367
HELD: “Procedural rules are not to 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 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!” It is
either you did not follow the rules strictly or you do not really know
the rules.
The power of the SC to promulgate rules concerning pleadings,
practice, and procedure includes the power to suspend the
effectivity of such rules to provide an exception from the operation
of said rules. It is within the inherent power of the Supreme Court
to suspend its own rules in a particular case in order to do justice
(De Guia vs. De Guia, GR No. 135384, April 4, 2001).
Reasons which would warrant the suspension of the Rules:
1)
2)
3)
4)
5)
the existence of special or compelling circumstances;
the merits of the case;
a cause not entirely attributable to the faault or negligence
of a party favored by the suspension of the rules;
a lack of any showing that the review sought is merely
frivolous and dilatory and
the other party will not be unjustly prejudiced thereby
(Sarmiento vs. Zaratan, GR No. 167471, Feb. 5, 2007)
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ORDINARY CIVIL ACTIONS
constitute a cause of action since damages are merely part of the
remedy allowed for the injury caused by a breach or wrong.
Rule 02
Injury is the illegal invasion of a legal right while damage is the loss,
hurt, or harm which results from the injury.
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. Every ordinary civil action must be based on a
cause of action. (n)
Cause of Action not an issue in administrative cases
While the existence of a cause of action is one that is essential to
the existence of a civil action, in administrative cases however, the
issue is not whether the complainant has a cause of action against
the respondent, but whether the respondent has breached the
norms and standards of the office. (Mutia v. Purisima, 494 SCRA
448)
Section 1 of Rule 1 is entitled cause of action. Section 1 expresses
the principle that every ordinary civil action must be based on a
cause of action. In other words, there cannot be a case unless you
have a cause of action.
Under Rule 16, one of the grounds for a motion to dismiss is that
your pleading states no cause of action.
Cause of Action in Specific Cases
In breach of contract cases, a cause of action does not require an
allegation of the negligence of the defendant but merely the
following elements:
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)
Q: Define cause of action.
A: CAUSE OF ACTION is an act or omission by which a party violates
a right of another.
ELEMENTS OF A CAUSE OF ACTION
Existence of legal right in favor of the plaintiff by
whatever means and under whatever law it arises or is
created;
2)
a correlative obligation on the part of the named
defendant to respect and not to violate such right; and
3)
an act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff
for which the latter may maintain action for recovery of
damages or other appropriate relief.
The existence of a contract, and
b.)
The breach of the contract. (Calalas v. CA SCRA 356; FGU
Insurance Corp. v. GP Sarmeinto Trucking Corp. 386
SCRA 312)
Thus, if a carrier is sued based on a breach of contract of carriage,
negligence need not be proved by the plaintiff, negligence not
being an element of the cause of action of a suit predicated on a
breach of contract. This is true whether or not the defendant is a
public or a private carrier. However, where the defendant is a
common carrier there is an additional reason for dispensing with
proof of negligence, i.e., negligence of the common carrier is
presumed. (Art. 1735 & Art. 1756 CC)
There are 3 main elements:
1)
a.)
In quasi delict, negligence, as an element, must be alleged and
proved. (Art. 2176 CC) but the negligence of those persons
described under Art. 2180 of the Civil Code, although based on
quasi delict is presumed.
Under Art. 2180, following the well-recognized doctrine of vicarious
liability, certain persons like the father, mother, guardian, owners
and managers of an establishment or enterprise, employee, the
State, and teachers or heads of establishments of arts and trades
are, under specified conditions, liable for acts of persons for whom
they are responsible.
Briefly stated, it is the reason why the litigation has come about, it
is the act or omission of defendant resulting in the violation of
someone’s right. (Phil. National Construction v CA, 514 SCRA 569;
Agrarian Reform Beneficiaries Association v. Nicolas GR No.
168394, Oct. 6, 2008)
Thus, an employer for instance, is liable for the damage caused by
his employees and household helpers acting within the scope of
their assigned tasks. The employer’s negligence in the selection and
supervision of his employee is presumed and his liability shall only
cease if he successfully proves his observance of the diligence
required of a good father of a family to prevent damage.
There is a fourth element added by some cases and commentators
– the element of 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 damage is
sustained.
When an injury is caused to another by the negligence of the
employee there instantly arises the juris tantum presumption of
law that there was negligence on the part of the employer either in
As a matter of fact, in a recent case, the SC remarked that wrong or
injury without damage or damage without wrong does not
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the selection or in the supervision, or both of the employee. The
liability of the employer is direct and immediate and is not
conditioned upon a prior recourse against the negligent employee
and a prior showing of the insolvency of such employee. Therefore,
it is incumbent upon the employer to prove his exercise of
diligence of a good father of a family in the selection and
supervision of the employee (Manliclic vs. Calaunan GR No. 150157
January 25, 2007)
do not have to enter into a contract with a person saying
you will not bump him;

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;

Cause of action must be unmistakably stated
The mere existence of a cause of action is not sufficient for a
complaint to prosper. Even if in reality the plaintiff has a cause of
action against the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim “states no cause
of action”. (Sec. 1[g], Rule 16).
This means that the cause of action must unmistakably be stated or
alleged in the complaint or that all the elements of the cause of
action required by substantive law must clearly appear from the
mere reading of the complaint. To avoid an early dismissal of the
complaint, the simple dictum to be followed is: “If you have a cause
of action, then by all means, state it! State all of its elements in
your pleading!”
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, you just narrate the
facts. 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.
Where there is a defect or an insufficiency in the statement of the
cause of action, a complaint may be dismissed not because of the
absence or a lack of a cause of action but because the complaint
“states no cause of action”. The dismissal will therefore, be
anchored on a “failure to state a cause of action.”
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You
are crossing the street and you are bumped by X who was driving a
car causing you injuries and being hospitalized. You also failed 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
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. So, it is still premature to file a collection case now because
one element is missing. It is not based on a cause of action and is
dismissible under Rule 16.
A borrows money from B promising to pay on a date certain. Upon
due date, A did not pay. Does B have a cause of action? Let us
examine whether the elements are present.
OBLIGATION – The defendant has the obligation to pay back
the loan under the law on contracts;
DAMAGE – I have to spend money in the hospital and I
lost my income.




EXAMPLE of Cause of Action:


ANOTHER EXAMPLE: D borrowed money from you last year
payable in January2010 but because you are in dire need of money
you demanded payment. Suppose D does not pay can you file an
action to collect the amount from him? Do you have a cause of
action?
In an unlawful detainer case, the cause of action does not accrue
unless there is a demand to vacate and is not complied with. If,
however, the suit is based on expiration of the lease, notice and
demand are not required. (Labastida v. CA, 287 SCRA 662)
RIGHT – the right of the creditor to get back his money;
DELICT or wrong – because of your recklessness, you
violated his right by injuring him;
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.
Where the cause of action rests on a promissory note, filing the
action before the due date of the obligation would be premature
because the obligation is one with a period. Whenever a period is
designated in an obligation, the obligation becomes demandable
only when the period arrives. Such period is presumed to be for the
benefit of both parties and of course, also of the debtor. He cannot
be charged before the due date (Art. 1196, Civil Code) unless he
loses the right to make use of the period (Art. 1198, Civil Code).


The failure to state a cause of action does not mean that the
plaintiff has “no cause of action.” It only means that the plaintiff’s
allegations are insufficient for the court to know that the rights of
the plaintiff were violated by the defendant. Thus, even if indeed
the plaintiff suffered injury, if the same is not set forth in the
complaint, the pleading will state no cause of action even if
factually or in reality the plaintiff has a cause of action against the
defendant.
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Action distinguished from Cause of Action
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, 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.
An action is the suit filed in court for the enforcement or protection
of a right, or the prevention or redress of a wrong. (Sec. 3[a]. Rule
2, Rules of Court. A cause of action is the basis of the action filed.
Under the Rules of Court “every ordinary civil action must be based
on a cause of action.” (Sec. 1, R 2).
CAUSE OF ACTION vs. RIGHT OF ACTION
ISSUE: Whether or not there is a right of action.
Another important subject in procedure is distinguishing a cause of
action from a right of action.
HELD: There is NO right of action because the consignee did
not comply with the conditions precedent.
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)
“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.”
It is the right of a person to commence and prosecute an action to
obtain the relief sought.
Q: What are the ELEMENTS of a right of action?
“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.”
A: There are three elements:
1.)
2.)
3.)
the plaintiff must have a good cause of action;
must be instituted by the proper party; and,
he/she must have performed all conditions
precedent to the filing of the action.
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF
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
A: The following are the distinctions:
1)
DE GUZMAN, JR. vs. CA – 192 SCRA 507
HELD: “The right of action springs from the cause of action,
but does not accrue until all the facts which constitute the
cause of action have occurred. When there is an invasion of
primary rights, then and not until then does the adjective or
remedial law become operative, and under it arise rights of
action. There can be no right of action until there has been a
wrong – a violation of a legal right – and it is then given by the
adjective law.”
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)
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.
3)
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
Right of action may be taken away by the running of the
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
PHILAM GENERAL INSURANCE CO. vs. SWEETLINES - 212 SCRA 194
FACTS: This involves shipped cargoes from Manila to Davao
but the goods were damaged while in transit. Based on the
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converted into natural obligation, which is based on equity rather
than a right.
only one case to recover the principal and the interest as well as
the attorney’s fees.
When we say that the action has prescribed we should mean that
what has prescribed is the right of action not the cause of action.
EXAMPLE: Damage (injury) suit: X, 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.
Relief, Remedy and Subject Matter
Relief is the redress, protection, award or coercive measure which
the plaintiff prays the court to render in his favor as consequence
of the delict committed by the defendant while remedy is the
procedure or appropriate legal form of relief of action which may
be availed of by the plaintiff as the means to obtain the desired
relief.
A single act may sometimes violate several rights of a person.
Nevertheless the plaintiff has only one cause of action regardless of
the number of rights violated. If a car owner sustains injuries to his
person and damage to his car as a result of the negligent driving of
the defendant, two rights of the plaintiff have been violated,
namely, his personal right to be safe in his person and his property
right to have his car intact and free from any damage. Under the
circumstances, the plaintiff can only file a single action for the
recovery of damages for both types of injuries. Filing an action to
recover damages to his person and later for damages to his car
would be splitting a single cause of action. This is because there is
one act of violation. If, however, a passenger in the same car was
also injured, the injuries to the passenger gives rise to a cause of
action separate and distinct from those sustained by the car owner
because distinct rights belonging to different persons have been
violated. The injured passenger may file a suit against the
defendant separate from the suit filed by the car owner.
Subject matter is the thing, wrongful act, contract or property
which is directly involved in the action, concerning which the wrong
has been done and with respect to which the controversy has
arisen.
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.
Purpose:
A cause of action for the reconveyance of title over property does
not include a cause of action for forcible entry or unlawful detainer.
They are distinct causes of action. What is involved in an ejectment
case is possession de facto or material possession. In an action for
reconveyance, the issue is ownership. (Tecson v. Gutierez, 452
SCRA 781; de la Cruz v. CA, 133 SCRA 520).
To avoid the following:
1)
2)
3)
Multiplicity of suits;
Conflicting decisions; and
Unnecessary vexation and harassment of defendants.
Application of the rule against splitting a single cause of action
This applies not only to complaints but also to counterclaims and
cross-claims.
This rule applies not only to complaints but also to counterclaims
and cross-claims. (Mariscal v. CA, 311 SCRA 51)
Q: What is splitting a single cause of action?
Example: The act of a defendant in taking possession of the
plaintiff’s land by means of force and intimidation constitutes a
single act of dispossession but gives rise to two reliefs to the
plaintiff:
A: Splitting a cause of action is the act of instituting two or more
suits for the same cause of action.
It 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)
a)
b)
In splitting a cause of action, the pleader divides a single cause of
action, claim or demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the rest for another
separate action. (Quadra v. CA 497 SCRA 221)
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
recovery of possession, and
damages arising from the loss of possession. Both of
these reliefs result from a single wrong hence, constitute
but a single cause of action. Each of them cannot be the
subject of two separate actions. IT is procedurally
erroneous for the plaintiff to file an action to recover
possession and another action for damages. Both
remedies must be alleged and claimed in only one
complaint. To file a separate action for each relief is to
split a single cause of action.
Now if the defendant denies plaintiff’s allegations and avers that
the action is just plain harassment and claims for damages,
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attorney’s fees and litigation" expenses, he cannot file 3
counterclaims.
1.)
The filing of one is available as a ground for the dismissal
of the other. This assumes a situation where there is
already another action pending between the same parties
for the same cause. This is one ground for dismissal of a
case, LITIS PENDENTIA. (Rule 16 – Motion to Dismiss,
Section 1 [e])
2.)
a judgment upon the merits in any one is available as a
ground for the dismissal of the others. This refers to a
judgment that is final and executor. 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].
The action for forcible entry should include not only the plea for
restoration of possession but also claims for damages arising out of
the forcible entry. The claim for damages cannot be filed separately
(Progressive Development Corporation, Inc. vs. CA 301 SCRA 637).
The same principle applies to an action to recover the possession of
a land. The action must also include the recovery of the fruits
already taken from the land and appropriated by the defendant. A
suit for recovery of the land and a separate suit to recover the
fruits will not be sustained. Also, when one files a complaint for
unlawful detainer on the ground of non-payment of rentals, the
complaint must include the recovery of the rentals in arrears, such
recovery being an integral part of the cause of action for unlawful
detainer.
EXAMPLE: A collection case was already decided a long time ago
dismissing it because the court found that the promissory note was
a forgery. 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.
A tenant illegally ejected from the land is entitled to two reliefs –
one for reinstatement and another for damages. Since both reliefs
arose from the same cause of action, they should be alleged in one
complaint (Gozon vs. Vda. De Barrameda 11 SCRA 376).
Note: if the ground is pendency of another action, the phraseology
of the rule (Sec. 4 R 2) no longer confines the dismissal to the
second action. As to which action should be dismissed would
depend upon judicial discretion and the prevailing circumstances of
the case.
An action for the recovery of taxes should also include the demand
for surcharges resulting from the delinquency in the payment of
said taxes. The non-payment of taxes gave rise to two reliefs: (a)
the recovery of the unpaid taxes; and (b) the recovery of the
surcharges resulting from non-payment of the taxes. These two
reliefs are results of a single cause of action and which should be
pursued in a single complaint (City of Bacolod vs. San Miguel
Brewery, Inc. 29 SCRA 819).
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)
A bank cannot file a civil action against the debtor for the collection
of the debt and then subsequently file an action to foreclose the
mortgage. This would be splitting a single cause of action (Danao
vs. CA 154 SCRA 446; Industrial Finance Corp. vs. Apostol 177 SCRA
521).
It has been held however, that an action to collect the amount of
the loan will not preclude a subsequent action for the rescission of
the mortgage based on violation of the conditions of the mortgage
(Enriquez vs. Ramos 7 SCRA 26).
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.
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)
EXAMPLE: There is the Recto Law (on Sales) which provides for 3
remedies of an unpaid seller of personal properties: (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.
The remedy of the defendant is a motion to dismiss or if such
motion is not filed, to allege it in the answer as an affirmative
defense.
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
Q: What are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
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file a case against the debtor to collect the loan and at the same
time file an 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
violations. (Larena vs. Villanueva, 53
Phil. 923)
EXAMPLE: A loan with a promissory note where the principal
amount is payable in installment. The first installment is payable in
2008, the second installment in this year, and the third installment
is payable in 2010 without any acceleration clause. So, there is only
one contract of loan but the principal is payable in three
installments at different times.
DANAO vs. CA – 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.
For non- payment of the first installment, the creditor has a cause
of action and can file one case.
Q: Next year, he did not pay the second installment, can the
creditor file another case?
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.”
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):
“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.”
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)
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION
IN CONTRACTS WITH SEVERAL STIPULATIONS
EXAMPLE: In 2008, the debtor did not pay but the creditor did not
file any case. Then this year, the second installment was not also
paid.
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)
Q: Is the creditor correct if he files two separate actions?
A: He is wrong. 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. If you do not
file a claim for one, it is deemed barred.
EXAMPLE: P enters into a contract with N which contains 3
stipulations: (#1) that next month, P will deliver to N 100 sacks of
rice; (#2) on the same date, P will also deliver to N 100 sacks of
corn; and (#3) on the same date, P will also deliver to N 100 sacks
of sugar. When the day arrived, nothing was delivered. So three
stipulations were violated.
So for example, if you will wait for the entire note to mature, you
cannot apply rule 2. You should only file one action and you go
back to the general rule.
Doctrine of Anticipatory Breach
Q: How many causes of action does N have against P?
RULE #4 (Exception to Rule #2)
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.
An unqualified and positive refusal
to perform a contract, though the
performance thereof is not yet due,
may, if the renunciation goes into
the whole contract, be treated as a
complete breach which will entitle
the injured party to bring the action
at once. (Blossom & Co. vs. Manila
Gas Corp., 55 Phil. 226)
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
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EXAMPLE: Let us suppose that in the preceding problems when the
first installment fell due the creditor demanded payment for the
first installment from the debtor but the latter refused to pay
claiming that there was no loan and the promissory note is a
forgery how many causes of action are there?
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 2 promissory notes?
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 because it has been
repudiated. If you only file only one for the first installment which
fell due, then another for the others, it will be useless because he
will still maintain the same position. 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. (Blossoms & Co. v. Manila Gas Corporation, 55
Phil. 226) The anticipatory breach committed by the defendant
entitles the plaintiff to only one cause of action.
A: NO, because joinder of causes of action is permissive. He may or
may not.
When the causes of action accrue in favor of the same plaintiff and
against the same defendant, i.e., there is only one plaintiff and one
defendant, it is not necessary to ask whether or not the causes of
action arose out of the same transaction or series of transactions.
This question is only relevant when there are multiple plaintiffs or
multiple defendants. In the hypothetical just discussed in the
example, is C obliged to join the causes of action against D?
No. He may file a single suit for each of the claims if he desires
because each debt is a separate cause of action. Joinder of causes
of action is not compulsory. It is merely permissive.
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:
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.
xxxxx
An ALTERNATIVE JOINDER exists when your cause of action is
either one or the other. You are not seeking relief from both but
from either one.
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.
A CUMULATIVE JOINDER exists when you are seeking relief for all
your causes of action.
It is the assertion of as many causes of action as a party may have
against another in one pleading. It is the process of uniting two or
more demands or rights in one action.
ALTERNATIVE joinder; Example:
A is the importer of the goods that were shipped on board a
carrier. Upon reaching Cebu City, they were unloaded by the
arrastre or stevedoring operator. But when the goods were
delivered to A they were already in a damaged condition. A
complained to the arrastre which denied liability claiming that the
goods were damaged already before unloading. Then when A went
to the carrier, it passed the blame to the arrastre.
Example: D is the debtor of C for P350,000.00 due on January 5,
2008. D likewise owes C P350,000.00 due on February 13, 2008.
Both debts are evidenced by distinct promissory notes. D did not
pay both debts despite demand.
How many causes of action are there? There are two because there
are two contracts and therefore two violations. So C can file two
separate actions for collection without violating the prohibition
against splitting a single cause of action.
A 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.
But can C file only one action by joining the two causes of action?
Yes under this Section 5.
C may file a single suit against D for the collection of both debts,
despite the claims being actually separate causes of actions and
having arisen out of different transactions.
Q: Can A file a complaint incorporating the two (arrastre and the
carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because A is not
claiming from both of them, but either one or the other.
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Another Example: C 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 C 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.
of the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
d)
a.) The party joining the causes of action shall comply with
the rules on joinder of parties
Q: Is it possible for C to file one complaint naming both the drivers
or both operators as defendants?
The rule on joinder of parties is 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. In other
words, before there can be a proper joinder of causes of action
there must must be a proper joinder of parties. Proper joinder of
parties requires that the right to relief should arise out of the
same transaction or series of transactions and that there exists a
common question of law or fact.
A: YES. Either of them is liable to her. That is alternative joinder of
causes of action.
CUMULATIVE JOINDER
Examples: Refer to prior illustrations
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:
When the causes of action accrue in favor of the same plaintiff and
against the same defendant, i.e., there is only one plaintiff and one
defendant, it is not necessary to ask whether or not the causes of
actions arose of the same transaction or series of transactions as
stated beforehand. This question is only relevant when there are
multiple plaintiffs or multiple defendants. So in our hypothetical
case where D borrowed from C two separate amounts of
P350,000.00 each covered by two separate promissory notes, C can
opt to file one complaint joining together the two causes of action
arising from the violations of the promissory notes.
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)
EXAMPLE: Two or more passengers riding on the same bus, met an
accident. All of them were injured. Every passenger who gets
injured has a cause of action separate and distinct from each other
because there are separate contracts of carriage violated. 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.”
Requisites for proper joinder of causes of action
Q: When is joinder of causes of action allowed?
Q: Suppose these passengers were riding on different buses owned
by the same operator. 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: Under Section 5, joinder of causes of action is allowed under the
following conditions:
a)
The party joining the causes of action shall comply with
the rules on joinder of parties;
b)
The joinder shall not include special civil actions or actions
governed by special rules;
c)
Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one
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: 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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Distinguish joinder of causes of actions from joinder of parties.
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
Joinder of causes of action refers to the procedural device whereby
a party who asserts various claims against the same or several
parties, files all his claims against them in a single complaint. The
joinder will not involve a joinder of parties when the causes of
action joined accrued in favor of the same plaintiff against the
same defendant, i.e., there is only one plaintiff against the same
defendant. This means that a joinder of causes of action will not
necessarily involve a joinder of parties.
PROBLEM: M encroached on two parcels of land belonging to me
both located IN Cebu City. In one parcel of land, the assessed value
is only P20,000. In another parcel of land, the assessed value is P1
million. I would like to file a case of action publiciana against him.
The first accion publiciana is triable by the MTC (P20,000). The
other accion publiciana is triable by the RTC.
Joinder of parties is a procedural device that may be employed
when there are various causes of actions that accrue in favor of one
or more plaintiffs against one or more defendants, i.e., there is a
plurality of parties. A joinder of parties requires that before parties
can be joined under a single complaint the right to relief must arise
out of the same transaction or series of transactions and there
must be a common question of law or fact. A joinder of parties may
or may not be involved in a joinder of causes of action.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC
will prevail. Venue, of course, is Cebu City.
Examples of “but pertain to different venues or jurisdiction”
PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P20,000. And then he encroached in another land of mine
in Cebu City with an assessed value of P1 million. You will notice
that in the Lapulapu land, the jurisdiction is in the MTC for the case
accion publiciana and the venue is Lapulapu because the property
is situated there. In the other case, the jurisdiction is in the RTC and
the venue is Cebu City.
b.) The joinder shall not include special civil actions or actions
governed by special rules
Assume that aside from the above claims of C against D, C who
happens to be the lessor of D wants to eject D from the apartment
occupied by D as lessee. May the action be joined with the claims
for money?
Q: Can I file a case against M joining the 2 cases?
No. An action for ejectment is a special action which cannot be
joined with ordinary action. The joinder does not include special
civil actions or those governed by special rules. The reason is
confusion in the application of procedural rules would certainly
arise from the joinder of ordinary and special civil actions in a single
complaint.
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be
filed in Cebu City.
Assume that C has the following causes of action against D: (a) P1M
based on a PN; (b) P1M based on torts; and (c) foreclosure of real
estate mortgage. May the causes of action be joined?
PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P1 million. And then he encroached in another land of
mine in Cebu City with an assessed value of P1 million also. You will
notice that in the Lapulapu land, the jurisdiction is RTC for the case
accion publiciana. In the other case, the jurisdiction is also in the
RTC of Cebu City. So both actions, RTC.
Yes, except the foreclosure of real estate mortgage, which is a
special civil action.
UNION GLASS AND CONTAINER CORP vs. SEC - 126 SCRA 31
Q: In which RTC will you file the case joining the causes of action?
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 right as a
stockholder under the Corporation Code and also his right as a
creditor under the Civil Code.
A: Either Lapulapu or Cebu City because both are RTCs.
PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P20,000. And then he encroached in another land of mine
in Cebu City with an assessed value of P20,000 also. In the Lapulapu
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.
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.
Q: Can I join in one complaint the 2 actions?
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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.
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 were
joined in one complaint when they should no be joined.
PROBLEM: M 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, A 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.
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.
Example: If an action for forcible entry is joined in one complaint
with the causes of actions based on several promissory notes, the
complaint should not be dismissed based on the misjoinder of the
forcible entry case. Instead, the cause of action predicated on
forcible entry may be severed from the complaint upon motion of a
party or by the court motu proprio and proceeded with separately
in another action.
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.
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, the counterpart, which is still present is
misjoinder of parties under Rule 3, Section 11:
PROBLEM: M encroached on my land in Cebu City one month ago
and then he encroached on another land of mine (assessed value of
P1 million) also located in Cebu City two years ago. Therefore, one
case is forcible entry triable by the MTC and the latter is accion
publiciana triable by the RTC.
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)
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
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.
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.
As can be gleaned from Sec. 6(a) and (c) of the Truth in Lending Act,
the violation of the said Act gives rise to both criminal and civil
liabilities. Rule 2, Section 5 of the Rules of Court allows these
actions to be joined in one petition. (UCPB vs. Sps. Samuel and
Odette Beluso, GR No. 159912, Aug. 17, 2007).
Splitting a cause of action and joinder of causes of action
Splitting is prohibited because it causes multiplicity of suits and
double vexation on the part of the defendant while joinder is
encouraged because it minimizes multiplicity of suits and
inceonvenience on the part of the parties.
SEC. 6. Misjoinder of causes of action. Misjoinder of causes of action is not a ground
for dismissal of an action. A misjoined cause
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Rule 03
So, you cannot sue or be sued unless you are either a person or an
entity authorized by law.
PARTIES TO CIVIL ACTIONS
A dead man cannot sue and he cannot be sued because he has no
more personality.
CLASSES OF PARTIES:
I.
II.
III.
IV.
V.
Real Parties in Interest
Representative Parties
Permissive Parties
Indispensable Parties
Necessary Parties
Situation: B sued “Rama Eatery.” So, it is “B vs. Rama Eatery.” It is
wrong. Rama Eatery is not a person nor an entity authorized by
law. 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.
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 original 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)
Juridical person as parties
The juridical persons who may be parties are those enumerated in
Art. 44 of the Civil Code, namely:
1.)
2.)
3.)
The State and its political subdivisions;
Other corporations, institutions and entities for public
interest or purpose, created by law; and
Corporations, partnerships, and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
Notes:
“ENTITIES AUTHORIZED BY LAW”
There are two main categories of parties in a civil action
namely, the plaintiff and the defendant.
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 a transaction, they may
be sued under the name by which they are
generally or commonly known.
The plaintiff is the claiming party or more appropriately,
the original claiming party and is the one who files the
complaint. The term however, does not exclusively apply
to the original plaintiff. It may also apply to a defendant
who files a counterclaim, a cross-claim or third party
complaint. Hence Section 1 defines “plaintiff” as the
claiming party, the counter-claimant, the cross-claimant
or the third-party plaintiff, etc.
In the answer of such defendant the names
and addresses of the persons composing said
entity must all be revealed.
The defendant does not only refer to the original
defending party. If a counterclaim is filed against the
original plaintiff, the latter becomes a defendant and the
former, a plaintiff in the counterclaim. Hence, in Sec. 1,
the term “defendant” refers also to a defendant in a
counterclaim, the cross-defendant or the third-party
defendant, etc.
Thus, if A, B, C, D and E without incorporating themselves or
without registering as a partnership, enter into transactions using
the common name “Ocean Quest Corporation”, they may be sued
as such. When the defendant “corporation” answers, the names of
A, B, C, D and E and their addresses must be revealed. Note
however, that the authority to be a party under this section is
confined only to being a defendant and not as a plaintiff. This is
evident from the words, “they may be sued”.
Q: Who may be parties to a civil case?
A: Only the following may be parties to a civil action:
1)
He nuts be either:
a.
natural or
b.
juridical persons or
c. entities authorized by law.
2)
3)
he must have the legal capacity to sue; and
he must be a real party-in-interest.
Another example of an entity authorized by law which may not be
a natural or juridical person is a labor union or organization under
the Labor Code. It is an entity authorized by law to file a case in
behalf of its members. Although it may not have been incorporated
under the Corporation Law but registered under the Labor Code. A
legitimate labor organization may sue and be sued in its registered
name (Art. 242 [e], Labor Code of the Philippines).
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What are the others?
1)
An estate of a deceased person may be a party to an
action. (Limjoco v. Intestate Estate of Fragante, 8 Phil.
776; Nazareno v. CA 343 SCRA 637)
2)
The Roman Catholic Church may be a party and as to its
properties, the archbishop or diocese to which they
belong may be a party. (Barlin v. Ramirez 7 Phil 47;
Verzosa v. Fernandez 49 Phil. 627)
3)
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 or the party entitled to the avails
of the suit. (Section 2)
A dissolved corporation may prosecute and defend suits
by or against it provided that the suits occur within 3
years after its dissolution, and the suits are in connection
with the settlement and closure of its affairs. (Sec. 122,
Corporation Code)
4)
Under Sec. 21 of the Corporation Code of the Philippines,
a corporation by estoppel is precluded from denying its
existence and the members thereof can be sued and be
held liable as general partners.
5)
A contract of partnership having a capital of three
thousand pesos or more but which fails to comply with
the registration requirements is nevertheless liable as a
partnership to third persons(Art. 1772 in relation to Art.
1768 Civil Code).
6)
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)
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.
To be a real party- in- interest, the interest must be “real”, which is
present substantial interest as distinguished from a mere
expectancy or a future, contingent, subordinate or consequential
interest. (Rayo v. Metrobank, 539 SCRA 571; Fortich v. Corona 289
SCRA 624; Figuracion v. Libi 539 SCRA 50. It is an interest that is
material and direct, as distinguished from a mere incidental
interest in the question. (Samaniego v. Aguila 334 SCRA 438; Mayor
Rhustom Dagadag v. Tongnawa 450 SCRA 437).
The determination of who the real party-in-interest is requires
going back to the elements of a cause of action. Evidently the
owner of the right violated stands to be the real party-in-interest
as plaintiff and the person responsible for the violation is the real
party-in-interest as defendant.(Lee v. Romillo 161 SCRA 589). Thus,
in a suit for violation of a contract, the parties-in-interest would be
those covered by the operation of the doctrine of relativity of
contracts under Art. 1311 of the Civil Code, namely, the parties,
their assignees and heirs. Likewise in a suit for annulment of a
contract, the real parties in interest would be those who are
principally or subsidiarily bound by the contract. (Art. 1397 Civil
Code)
A political party incorporated under Act 1459 (now BP
68, Corporation Code)
Remedy when a party impleaded is not authorized to be a partyAs to plaintiff:
Where the plaintiff is not a natural or a juridical person or an entity
authorized by law, a motion to dismiss may be filed on the ground
that “the plaintiff has no legal capacity to sue.” (Sec. 1[d] R 16)
When plaintiff is not the real party in interest:
every action must be prosecuted or defended in the name of the
real party in interest
Also, if the plaintiff has capacity to sue but he is not the ‘real party
in interest’, the ground for dismissal is a ‘failure to state a cause of
action (Aguila vs. CA 319 SCRA 246; Balagtas vs. CA 317 SCRA 69)
not lack of legal capacity to sue.’
So a complaint is dismissible if it is not made in the name of the
real party in interest.
In an action to recover ownership over or title to a piece of land ,
you do not file a case against the tenant. He is not the real party in
interest. You must file the case against the owner of the land.
As to defendant:
Where it is the defendant who is not any of the above, the
complaint may be dismissed on the ground that the “pleading
asserting the claim states no cause of action” or “failure to state a
cause of action” (Sec. 1[g], R 16) because there cannot be a cause
of action against one who cannot be a party to a civil action.
Neither can your boyfriend file the case.
When you are riding in a common carrier which collided and you
were injured, do not file a case against the driver for damages. Your
contract is not with the driver. Your contract is with the operator.
So you file a case of culpa contractual against the owner or
operator.
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
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
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business suing in a contract because they are not real parties in
interest.
is the party who would be benefited or injured by the judgment or
is the party entitled to the avails of the suit. An attorney-in-fact is
not a real party-in-interest and that there is no law permitting an
action to be brought by and against an attorney-in-fact (Carillo vs.
CA 503 SCRA 66).
BALIWAG TRANSIT vs. CA - 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.”
SALONGA vs. WARNER BARNES – 88 Phil. 125 [Bar Problem]
FACTS: A decided to go abroad but she has properties in the
Philippines. So she executed a special power of attorney in
favor of K giving the latter “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 A went abroad.
HELD: The parents are not the real party in interest. They
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.”
K 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 in the
caption, “K, plaintiff vs. L, defendant.”
Of course, if the child is a minor the parents can file as
representatives but not as principal party.
HELD: NO. The real property in interest is the principal, the
owner of the property. K 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. K is given the authority to sue, to
manage, hire a lawyer but not as the plaintiff because the real
party in interest is A. The complaint should be captioned as
“A, plaintiff vs. L, defendant.”
ISSUE: Is the action properly filed?
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. In other words, while only A
and B are the parties to the insurance contract yet the third party
liability stipulation is intended to benefit a third party who may be
damaged by A while driving his car.
Q: Suppose the caption will read: “K, as attorney-in-fact of A,
plaintiff vs. L, defendant” is the complaint properly filed?
A: NO. This is even worse because K is admitting that he is only an
attorney-in-fact so it becomes more obvious that he is not the real
party in interest. If K wants to include his name, it should read: “A,
plaintiff, represented by K, his attorney-in-fact vs. L, defendant.”
Also parties who have not taken part in a contract may show that
they have a real interest affected by its performance or annulment.
In other words, those who are not principally or subsidiarily
obligated in a contract, in which they had no intervention, may
show their detriment that could result from it. Thus, Article 1313 of
the Civil Code provides that “creditors are protected in cases of
contracts intended to defraud them.” Further, Article 1381 of the
Civil Code provides that contracts entered into in fraud of creditors
may be rescinded when the creditors cannot in any manner collect
the claims due them. Thus, a creditor who is not a party to a
contract can sue to rescind the contract to redress the fraud
committed upon him.
Q: Does the law require A 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 plaintiff can invoke the
jurisdiction of the court by filing the complaint and paying the
docket fee.
Should a lawful possessor be disturbed in his possession, it is the
possessor, not necessarily the owner of the property, who can
bring the action to recover the possession. The argument that the
complaint states no cause of action because the suit was filed by a
mere possessor and not by the owner is not correct (Phil. Trust
Company vs. CA 320 SCRA 719).
A mere agent, who is not an assignee of the principal cannot bring
suit under a deed of sale entered into in behalf of his principal
because it is the principal, not the agent who is the real party in
interest (Uy vs. CA 314 SCRA 69). In case the action is brought
against the agent, the action must be brought against an agent
acting in his own name and for the benefit of an undisclosed
principal without joining the principal, except when the contract
involves things belonging to the principal. The real party-in-interest
Suits for corporations:
When the corporate offices have been illegally searched, the
corporate officer is not the real party in interest to question the
search. The right to contest the transgression belongs to the
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corporation alone which has a personality of its own separate and
distinct from that of an officer or a stockholder. The objection to an
unlawful search and seizure is purely personal and cannot be
availed of by third persons (Stonehill vs. Diokno 20 SCRA 383).
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)
Derivative suit:
However, even if the cause of action belongs to the corporation, if
the board refuses to sue despite demand by the stockholders to
sue and protect or vindicate corporate rights, a stockholder is
allowed by law to file a derivative suit in the corporate name. In
such a suit, the real party-in-interest is actually the corporation and
the stockholder filing the action is a mere nominal party (Asset
Privatization Trust vs. CA 300 SCRA 579)
Partnerships:
Under Art. 1768 of the Civil Code a partnership has a juridical
personality separate and distinct from that of each of the partners.
Hence, if the contract was entered into by the partnership in its
name, it is the partnership, not its officers or agents which should
be impleaded in any litigation involving property registered in its
name. A violation of this rule will result in dismissal of the
complaint for failure to state a cause of action (Aguila vs. CA 319
SCRA 345).
Section 3 is consistent with Section 2 because under Section 2, you
cannot sue and be sued if you are not the real party in interest.
Section 3 allows one who is not a real party in interest to sue and
be sued in behalf of somebody else but requires the beneficiary to
be named in the Complaint being the real party in interest.
Example: GUARDIAN. Suppose J, a minor was injured, a case for
damages can be filed in behalf of the minor. A minor cannot sue
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.”
Failure to include the name of a party in the pleading
The mere failure to include the name of a party in the title of the
complaint is not fatal because the Rules of Court requires the
courts to pierce the form and go into the substance and not be
misled by a false or wrong name in the pleadings. The averments
are controlling and not the title. Hence, if the body indicates the
defendant as a party to the action, his omission in the title is not
fatal (Vlasons Enterprises vs. CA 310 SCRA 26).
In Oposa vs. Factoran GR No. 101083, 1993, minors represented by
their parents were held as real parties in interest to file an action to
annul timber license agreements issued by the state under the
following principles:
Rule on ‘standing’ as distinguished from the concept or ‘real
party-in-interest’
Locus standi is defined as a right of appearance in a court of justice
on a given question. IN private suits, standing is governed by the
‘real party-in-interest’ rule found in Section 2 Rule 3 of the Rules
of Court which provides that ‘every action must be prosecuted or
defended in the name of the real party-in-interest’(Baltazar vs.
Ombudsman GR No. 136433 December 6, 2006)
1.
2.
3.
4.
inter-generational responsibility;
inter-generational justice;
the right of the Filipinos to a balnced and healthful
ecology; and
minors repersent themselves and the generation to
come.
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 represents 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.
However, the concept of ‘standing’ because of its constitutional
underpinnings is very different from questions relating to whether
or not a particular party is a real party-in-interest. Although both
are directed towards ensuring that only certain parties can
maintain an action, the concept of standing requires an analysis
of broader policy concerns. The question as to who the real partyin-interest is involves only a question on whether a person would
be benefitted or injured by the judgment or whether or not he is
entitled to the avails of the suit (Kilosbayan Inc. vs. Morato 246
SCRA 540).
Q: If the estate of the deceased has some collectibles, who will file
the case?
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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.
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.
CHING vs. CA– 181 SCRA 9
FACTS: A wanted to sue D, who owes her a sum of money.
The problem is, she cannot locate D’s whereabouts. Also, A is
not certain whether D is dead or alive. So, to play it safe, what
A did was to file a case against the “defendant and/or the
estate of defendant.” A obtained a judgment against the
‘defendant and/or the estate of defendant.’
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 the income
that she can get redounds to the benefit of the conjugal
partnership.
Later on when the judgment was enforced, it turned out that
D was already dead but he has properties left behind. So, they
started to take hold of his properties. Now, the heirs of D
challenged the decision.
And there were decided cases in the past where even if for
example, a wife sues without the husband, the defect is not fatal
but merely formal. 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)
ISSUE: Whether or not there was a valid judgment against the
‘defendant/or the estate of the defendant.”
Q: Give an exception to that general rule that husband and wife
shall sue or be sued jointly.
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).”
A: The EXCEPTIONS are:
1)
2)
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)
“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.
3)
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.
Another is when a spouse without just cause
abandons the other or fails to comply with his
or her obligations to the family with respect to
the marital, parental or property relations.
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)
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 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.
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 include 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.
Sec 4. Spouses as parties. - Husband and wife
shall sue or be sued jointly, except as
provided by law. (4a)
A person need not be judicially declared incompetent it being
sufficient that his incompetency be alleged in the corresponding
pleading.
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III. PERMISSIVE PARTY
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.
Sec 6. Permissive joinder of parties. - All
persons in whom or against whom any right
to relief in respect to or arising out of the
same transaction or series of transactions is
alleged to exist, whether jointly, severally, or
in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or
be joined as defendants in one complaint,
where any question of law or fact common to
all such plaintiffs or to all such defendants
may arise in the action; but the court may
make such orders as may be just to prevent
any plaintiff or defendant from being
embarrassed or put to expense in connection
with any proceedings in which he may have
no interest. (6)
PROBLEM: Suppose a story appeared in the Inquirer where 5
people were called as jueteng kings. They were allegedly involved
in jueteng. 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 fact and law in their cause of action.
PROBLEM: M, 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?
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.
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.)
2.)
A: YES because there is a common question of fact and law. There
is only one accident.
There is a right to relief in favor of or against the
parties joined in respect to or arising out of the
same transaction or series of transactions; and
Q: But suppose the three of them will file 3 separate cases against
M, can it be done?
There is a question of law or fact common to the
parties joined in the action.
A: yes, because it is a permissive joinder of parties, not mandatory.
Q: Why does the law encourage joinder of parties?
An additional condition is that the such joinder is not otherwise
proscribed by the provision of the rules on jurisdiction and venue.
A: The following are the reasons:
Series of Transactions
1)
2)
3)
4)
This pertains to transactions connected with the same subject
matter of the suit.
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 is possible
for each passenger to file his own case because their causes of
action are different from each other. But can they be joined
together in one complaint against the common carrier?
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 or 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
proper under Rule 2, Section 5
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.
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.
EXAMPLE: When there is only one plaintiff and one defendant:
Suppose Melissa will secure three (3) loans from me.
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Q: How many causes of action do I have if M will not pay me?
multiple litigation. In a joint obligation for instance, the interest of
one debtor is separate and distinct from that of his co-debtor and a
suit against one debtor does not make the other an indispensable
party to the suit.
A: Three
Q: Now, can I join them in one complaint?
Compulsory joinder of indispensable parties
A: Yes.
Although normally, a joinder of parties is permissive (Sec. 6 Rule 3),
the joinder of a party becomes compulsory when the one involved
is an indispensable party. Clearly, the rule directs a compulsory
joinder of indispensable parties (Sec. 7, Rule 3).
Q: Is there joinder of causes of action?
A: Yes.
Q: Is there joinder of parties?
The presence of all indispensable parties is a condition sine qua
non for the existence of judicial power. It is precisely when an
indispensable party is not before the court that the action should
be dismissed. Thus, the plaintiff is mandated to implead all the
indispensable parties considering that the absence of one such
party renders all subsequent actions of the court null and void for
want of authority to act, not only as to their absent parties but
even as to those present. One who is not a party to a case is not
bound by the decision of the court; otherwise, he will be deprived
of his right to due process (Sepulveda, Sr. vs. Pelaez 450 SCRA 302).
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)
Dismissal for failure to implead an indispensable party
INDISPENSABLE PARTY and NECESSARY PARTIES
It has been ruled on various occasions that since the joinder of
indispensable parties is compulsory, the action should be dismissed
when indispensable parties are not impleaded or are not before
the court. The absence of indispensable parties renders all
subsequent actions of the trial court null and void for want of
authority to act, not only as to the absent parties but even as to
those present (MWSS vs. CA 297 SCRA 287).
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)
Need of an order to implead an indispensable party
It is noteworthy that the Court in its rulings did not hold that the
failure to join an indispensable party results in the outright
dismissal of the action. An outright dismissal is not the immediate
remedy authorized by the Rules because under the Rules a nonjoinder (or misjoinder) of parties is not a ground for dismissal of
an action. Instead, parties may be dropped or added by 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 (Sec. 11 Rule 3). It is when the
order of the court to implead an indispensable party goes
unheeded may the case be dismissed. The court is fully clothed
with the authority to dismiss a complaint due to the fault of the
plaintiff as when, among others, he does not comply with any
order of the court (Sec. 3 Rule 17; Plasabas vs. CA GR No. 166519,
March 31, 2009). (See also Pamplona Plantation Co. vs. Tinghil
450 SCRA 421).
Notes:
An indispensable party is a real party in interest without
whom no final determination can be had of an action.
(Sec. 7) Without the presence of this party, the judgment
cannot attain real finality. (Servicewide Specialists, Inc.
v. CA 318 SCRA 493; De Castro v. CA 384 SCRA 607)
(See also Lucman vs. Malawi GR No. 159794 December 19, 2006)
A person is not an indispensable party, however, if his interest in
the controversy or subject matter is separable from the interest of
the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice
between them. Also, a person is not an indispensable party if his
presence would merely permit complete relief between him and
those already parties to the action, or if he has no interest in the
subject matter of the action. It is not a sufficient reason to declare
a person to be an indispensable party that his presence will avoid
Effect of absence of indispensable party
In a relatively recent case, the Court held that whenever it appears
to the court in the course of a proceeding that an indispensable
party has not been joined, it is the duty of the court to stop the trial
and to order the inclusion of such party. The absence of an
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indispensable party renders all subsequent actuations of the court
null and void, for want of authority to act not only as to the absent
parties, but even as to those present. Accordingly, the
responsibility of impleading all the indispensable parties rests on
the plaintiff. The defendant does not have the right to compel the
plaintiff to prosecute the action against a party if he does not wish
to do so, but the plaintiff will have to suffer the consequences of
any error he might commit in exercising his option (Uy vs. CA 494
SCRA 535).
mortgagee, the second mortgagee is merely a necessary party.
(Somes vs. Gov’t of Phil., 62 Phil. 432)
Q: Distinguish indispensable from necessary party.
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.
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.
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) Stated otherwise,
an indispensable party must be joined because the court cannot
proceed without him. Hence, his presence is mandatory.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
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.) His presence is not mandatory because
his interest is separable from that of the indispensable party. He
has to be joined whenever possible to afford complete relief to
those who are already parties.
Now, the surety may be ordered to pay who can 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, so that when the
creditor claims from the surety, the latter can automatically claim
from the debtor. Multiplicity of suits is then, avoided.
A and B are the signatories in a PN which reads: “We promise to
pay to the order of C P1M on February 27, 2009. On due date the
debtors failed to pay.
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)
(a)
May C sue A alone?
Yes. The cause of action against A is separate and distinct
from the cause of action against B. The tenor of the note
discloses merely a joint obligation. In a joint obligation the
credit or debt shall be divided into as many equal shares as
there are creditors and debtors, the credits or debts being
considered distinct from each other. (Art. 1208 CC). Being
debtors in a joint obligation, the debtors then are liable
separately for P500,000.00 each.
Joint debtor
He is an indispensable party in a suit against him but a necessary
party in a suit against his co-debtor.
(b) Is A in a suit against him by C a necessary or an
indispensable party? He is an indispensable party.
Without him being impleaded as defendant, C cannot
collect the P500,000.00 share of A. Without A there
cannot be a final determination of the case against him.
Solidary debtor
In a suit brought by a creditor against one solidary debtor, the
other solidary debtor is neither indispensable nor a necessary
party.
(c)
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
In the suit by C against A is B a necessary or an
indispensable party? B is not an indispensable party. C
can collect from A P500,000.00 without impleading B. He
is only a necessary party. Without B being made a party
to the action, C cannot have a complete relief, i.e., he
cannot collect his entire credit of P1M. If he desires a
complete recovery, B must be impleaded.
(3) In the above example, assuming that the debtors bound
themselves to pay the P1M solidarily, would B an indispensable or
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necessary party to a suit by C against A? He would not be a
necessary party. Complete relief could be had by C without joining
B because the obligation is solidary. A could be ordered to pay the
entire obligation of P1M. Neither is B an indispensable party. There
could be a complete and final determination of the action for a sum
of money without B being joined.
PROBLEM: M and C are SOLIDARY debtors of P100,000 (50-50
sharing). D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without C?
A: YES and M is required to pay D the whole amount of the debt
because of solidary obligation. Then M can proceed against C for
reimbursement. Be is merely necessary party.
Solidarity does not make a solidary debtor an indispensable party in
a suit filed by the creditor against another solidary debtor.
(Republic v. Sandiganbayan 173 SCRA 72; Operators Inc. v.
American Biscuit Company 154 SCRA 738)
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.
(4) B Bought a car from S on an installment basis. A chattel
mortgage was executed on the car in favor of S to secure the
obligation. Before the payment was completed, B sold the car to D.
It was agreed between B and D that D would be responsible for the
monthly installments. D failed to pay three installments.
May S sue D alone in the foreclosure or replevin suit? He cannot. B
must be made defendant. B is an indispensable party in relation to
S. The foreclosure or replevin is premised on the default of B, the
debtor. S would have no right to foreclose the mortgage or
repossess the car without establishing the default of B unless the
obligation of B to S was assigned to D with the consent of S
thereby novating the obligation.
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)
PROBLEM: K borrowed money from D. A is the guarantor. D filed a
case against K. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Duty of Pleader When a Necessary Party is not joined
A: 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.
While a necessary party is not indispensable to the final
determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a
necessary party, the pleader is under obligation to: (a) set forth the
name of said necessary party, if known, and (b) state the reason
why the necessary party is omitted. A reason justifying the nonjoinder of a necessary party is when said party is outside the
jurisdiction of the court.
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 codebtors. 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.
Effect of justified failure to implead a necessary party
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.
PROBLEM: M and C are JOINT debtors of P100,000 (50-50 sharing).
D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without C?
When court may order joinder of a necessary party and effect of
failure to comply
A: YES but D can only collect from M up to P50,000 because of their
joint obligation. C is only necessary insofar as M’s share is concern.
But M is indispensable party insofar as his share is concern.
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.
Q: But if D wants to collect the entire P100,000, what should she
do?
A: She should file a case against both M and C.
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Sec. 10. Unwilling co-plaintiff. If the consent
of any party who should be joined as plaintiff
cannot be obtained, he may be made a
defendant and the reason therefor shall be
stated in the complaint. (10)
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 court can always issue an order ordering the
removal of a misjoined party or the inclusion of joinder of a party
who should be included.
This is particularly true with INDISPENSABLE parties because the
case cannot proceed without him/her.
Effect of failure to obey order of the court to add or drop a party
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.
Even if neither misjoinder nor non-joinder is a ground of dismissal
of the action, the failure to obey the order of the court to drop or
add a party is a ground for the dismissal of the complaint under
Sec. 3, R 17.
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.
Now, is this allowed?
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.
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
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)
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 nonjoinder 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. And this is the reason why the rule
ordains that the dropping is ‘on such terms as are just’” (also
Lim Tan Hu vs. Ramolete 66 SCRA 425).
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.”
Note: that objections to defects in parties should be made at the
earliest opportunity, i.e. the moment such defet becomes
apparent, by a Motion to Strike the Names of the Parties
impleaded. Objections to misjoinder cannot be raised for the first
time on appeal.
Well, ‘NON-JOINDER’ is different. A party who should be joined
was not joined such as a necessary party.
CLASS SUIT
Q: What happens if a party is misjoined or if there is a non-joinder,
should the case be dismissed?
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
A: No, that is not a ground for dismissal.
Q: So what is the remedy then?
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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)
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 because
under Sec. 2 “every action must be prosecuted or defended in the
name of the real party-in-interest.”
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;
The parties actually before the court are sufficiently
numerous and representatives as to fully protect
the interests of all concerned; and
3)
4)
EXCEPTION: to the General Rule: Class Suit.
The representatives sue or defend for the benefit of
all. Berses v. Villanueva 25 Phil. 473; Sulo ng Bayan,
Inc. v. Araneta 72 SCRA 347)
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required by the Rules is a
common or general interest in the subject matter of the litigation.
The ‘subject matter’ of the action is meant the physical, the things
real or personal, the money, lands, chattels, and the like, in
relation to the suit which is prosecuted and not the delict or
wrong committed by the defendant. It is not also a common
question of law that sustains a class suit but a common interest in
the subject matter of the controversy. (Mathay v. Consolidated &
Trust Bank 58 SCRA 559)
A class suit is an action where one or more may sue for the benefit
of all implying that the parties are so numerous and it is
impracticble to bring them all to court.
The requisites for said class action must also be complied with.
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
There is no class suit in an action filed by 400 residents initiated
through a former mayor, to recover damages sustained due to their
exposure to toxic wastes and fumes emitted by the cooking gas
plant of a corporation located in the town. Each of the plaintiffs has
a separate and distinct injury not shared by other members of the
class. Each supposed plaintiff has to prove his own injury. There is
no common or general interest in the injuries allegedly suffered by
the members of the class.
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.
There is no class suit in an action for damages filed by the relatives
of the fatalities in a plane crash. There is no common or general
interest in the injuries or death of all passengers in the plane. Each
has a distinct and separate interest which must be proven
individually.
ISSUE: Is the suit filed by some members in behalf of some
members proper?
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.
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.
Another example is a stckholder's derivative suit, though both are
subject to the other requisites of the corresponding governing law
especially on the issue of locus standi. (Regalado, p. 97)
Now, we will go to some interesting cases on class suit decided by
the Supreme Court:
An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or is
not a class suit depends upon the attendant facts. (Mathay v.
Consolidatred Bank & Trust Company, 58 SCRA 559; Borlasa v.
Polistico 47 Phil. 345)
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
Q: What are the CONDITIONS FOR A VALID CLASS SUIT?
A: Under Section 12, the following are the conditions of a valid
class suit:
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So, Sulo (torch) ng Bayan is the association of squatters. Since
the properties of the Araneta is very big, they subdivided it.
Then a case was filed by Sulo ng Bayan Association against
Araneta to annul the title of the latter.
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.
ISSUE #1: Whether or not the action was filed 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.
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 filed
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.
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.
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
healthful environment constitute at the same time the
performance of the obligation to ensure the protection of the
rights or the generations to come.
To illustrate:
You are Occupant No. 1, and occupies a particular lot over
which he/she has interest in but he/she does not have
interest over the other lots which he/she does not occupy. If
that is so, then the subject matter is not of common interest.
The interest of one occupant is only on the lot he occupies.
Q: In case of doubt, should a class suit be allowed?
What should be done is for 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 requires
that all should be impleaded. Unlike in a class suit, the subject
matter is of interest to everybody and we cannot all be joined
because we are so numerous.
A: NO. When the issue is not so clear, a class suit should not be
allowed because 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. 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.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs.
SULPICIO LINES – May 19, 1989
RE: Doña Paz Tragedy
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.
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 selfappointed representatives would surely plead denial of due
process.
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.
Q: Distinguish a representative suit from a class suit.
A: In the case of
OPOSA vs. FACTORAN – 224 SCRA 12 [1993]
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LIANA’S SUPERMARKET vs. NLRC – 257 SCRA 186 [May 31,
1996]
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)
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.”
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 are inconsistent with
each other, it is allowed.
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.
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: May plaintiffs 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.
It is important to note the following:
1)
2)
3)
CLASS SUIT
REPRESENTATIVE SUIT
DERIVATIVE SUIT – only peculiar to the corporation law
where the minority files a suit in behalf of the entire
corporation because an intra-corporate remedy is
useless or because of the failure of the board of
directors, deliberate or otherwise, to act in protection of
the corporation (Black’s 5th Ed. 399; Lim vs. Lim-Yu 352
SCRA 216).
Just as the rule allows a suit against defendants in the alternative,
the rule also allows alternative causes of action and alternative
defenses (Sec. 2 Rule 8; Sec.5[b] Rule 6; Sec. 20, Rule 14)
In a derivative, suit, the cause of action belongs to the corporation
and not to the stockholder who initiates the suit. In a class suit, the
cause of action belongs to the members of the class.
Assume that X, a pedestrian, was injured in the collision of two
vehicles. He suffered injuries but does not know with certainty
which vehicle caused the mishap. What should X do if he wants to
sue?
Class suit and permissive joinder of parties
In a class suit there is one single cause of action pertaining to
numerous persons while in permissive joinder there are multiple
causes of action separately belonging to several persons.
He should sue the vehicle drivers/owners in the alternative.
P sent some goods to D pursuant to a contract. The goods were
delivered to E, the known agent of D. D did not pay P. D contends
that he has not received the goods. P claims otherwise and insists
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that D had received the goods. Should P sue D or should he sue E?
P should sue both but in the alternative.
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.
Plaintiff may sue the shipping company and the arrastre operator
alternatively for the recovery of damages to goods shipped through
a maritime vessel (Rizal Surety & Insurance Company vs. Manila 70
SCRA 187).
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)
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 accordingly.
(14)
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.
Requisites:
1)
there is a defendant;
2)
his/her identity is unknown;
3)
fictitious name may be used because of ignorance of
defendant's true name and said ignorance is alleged in the
complaint;
4)
identifying description may be used; sued as unknown
owner, heir, deviseee or other designation;
5)
amendment to the pleading when true name is discovered;
and
In the answer of such defendant, the names
and addresses of the persons composing said
entity must all be revealed.
Requisites:
1)
6)
2)
3)
defendant is the defendant being sued, not a mere
additional defendant.
there are two or more persons not organized as a
juridical entity;
they enter into a transaction;
a wrong or delict is committed against a third person in
the course of such transactions.
Rule 1, Section 1 provides that only natural of juridical persons may
be sued.
Service of summons upon a defendant whose identity is unknown
may be made by publication in a newspaper of general circulation
in accordance with Sec. 14 of Rule 14.
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: Can you sue somebody who is unknown?
A: YES, under Section 14.
BAR PROBLEM: While L 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 L,
how would you sue the defendant?
Q: Who are really the defendants here?
A: The persons involved.
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.
A: Under Section, I will sue the owner of that car as an unknown
defendant. I can place in my complaint, “L’, 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.
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.
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
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Q: How do you summon this kind of defendant?
administrator and the court may appoint a
guardian ad litem for the minor heirs.
A: Rule 14, Section 8:
The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
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)
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)
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)
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. In majority of cases when the party
dies, the case or the cause of action continues.
GENERAL RULE: actions must be filed against real parties in
interest.
Examples of actions which survive the death of a party:
EXCEPTIONS: (When may an action be filed without naming all the
parties in involved?)
1.
2.
3.
Class suit (Section 12, Rule 3);
Entity without juridical personality (Section 15, Rule
3);
Any co--owner may bring an action for ejectment
(Article 487, New Civil Code)

Actions and obligations arising from delicts survive (Aguas
v. Llamas 5 SCRA 959)

Actions based on the tortious conduct of the defendant
survive the death of the latter. (Melgar v. Benviaje 179
SCRA 196)

Actions to recover real and personal property, actions to
enforce a lien thereon, and actions to recover damages for
an injury to person or property and suits based on the
alleged tortious acts of the defendant survive. (Board of
Liquidators v. Kalaw 20 SCRA 987). An action for quieting of
title with damages is an action involving real property. It
survives and the claim is not extinguished by the death of a
party. (Saligumba v. Calanog GRT+ 143365 Dec. 4, 2008)

An action of ejectment survives the death of a party. It
continues until judgment because the issue concerning the
illegality of the defendant’s possession is still alive, and
upon its resolution depends the corollary issue of whether
and how much damages may be recovered. (Tanhueco v.
Aguilar 33 SCRA 236; Vda de Salazar v. CA; Florendo jr.
v.Coloma 129 SCERA 304)

Actions for the recovery of money, arising from a contract
express or implied are not extinguished by the death of the
defendant. (Sec. 20 R 3)
Instances where substitution of parties is proper
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
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Duty of lawyer of the deceased
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.
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 or executor of the estate)
In legal ethics, the lawyer- client relationship is automatically
terminated by the death of the client because the lawyer-client
relationship is personal. Neither does he become the counsel of the
heirs of the deceased unless his services are engaged by said heirs
(Lawas vs. CA 146 SCRA 173). But procedurally, he must tell the
court and give the name of the legal representative. The latter may
re-hire the lawyer but under a new contract.
Lawas ruling is no longer applicable
Under the second paragraph of Sec. 16 of Rule 3 states: “ … The
heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator…”
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.
The second paragraph of the rule is plain and explicit. The heirs
may be allowed to be substituted for the deceased without
requiring the appointment of an administrator or executor.
However, if within the specified period a legal representative fails
to appear, the court may order the opposing counsel, within a
specified period, to process the appointment of an administrator or
executor who shall immediately appear for the estate of the
deceased. The previous pronouncement of the Court in Lawas v. CA
xxxxx is no longer true. Thus, the heirs do not need to first secure
the appointment of an administrator of the estate of the deceased
because the very moment of death, they stepped into the shoes of
the deceased and acquired the rights as devisee/legatee. Said heirs
may designate one or some of them as their representative before
the trial court. (San Juan v. Cruz GR No. 167321, July 31, 2006)
Upon receipt of the notice of death, the court shall determine
whether or not the claim is extinguished by such death. If the
claim survives, the court shall order the legal representative or
representatives of the deceased to appear and be substituted for
the deceased within 30 days from notice (Sec. 16 Rule 3). The
substitution of the deceased would not be ordered by the court in
cases where the death of the party would extinguish the action
because substitution is proper only when the action survives
(Aguas vs. Llamas 5 SCRA 959)
Purpose and Importance of substitution of the deceased
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.
The purpose behind the rule on substitution of parties is the
protection of the right of every party to due process. It is to
ensure that the deceased would continue to be properly
represented in the suit through the duly appointed legal
representative of the estate. (Torres v. CA 278 SCRA 793; Vda de
Salazar v. CA 250 SCRA 305)
So, other than the legal representative, which refers to the
executor or administrator, the alternative will be to substitute the
heirs, such as the surviving children, wife or spouse.
Non-compliance with the rules on substitution of a deceased party
renders the proceedings of the trial court infirm because the court
acquired no jurisdiction over the person of the legal representative
of heirs of the deceased (Brioso v. Rili-Mariano 396 SCRA 549)
because no man should be affected by a proceeding to which he is
a stranger. A party to be affected by a personal judgment must
have a day in court and an opportunity to be heard. (Vda. De
Haberer v. CA 104 SCRA 534; Fereira v. Vda de Gonzales 104 Phil.
143; Torres v. CA 278 SCRA 793)
Although there was a case decided by the SC way back in 1986 in
the case of
LAWAS vs. CA – 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:
1) An unreasonable delay in the appointment of
administrator or executor, or
2) when the heirs resort to extrajudicial partition
Note this portion in the case of:
VDA. DE SALAZAR vs. CA– 250 SCRA 303 [November 23, 1995]
But outside of those two reason, the law always gives priority
to the administrator or executor.”
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
Under the rule, priority is given to the legal representative of
the deceased. That is, the executor or the administrator of his
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years, until it was decided. The court was not informed of the
death of the defendant. Until finally, there was a decision.
Requisites:
1)
ISSUE: When there is failure to effectuate the substitution of
heirs before the rendition of judgment, is the judgment
jurisdictionally defective?
2)
3)
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.”
the action must primarily be for recovery of money,
debt, or interest therein;
the claim, subject of the action, arose from contract,
express of implied; and
defendant dies before the entry of final judgment of the
court in which the action was pending.
Under this section, the death of the defendant will not result in the
dismissal of the action. The deceased shall be substituted by his
legal representatives in the manner provided for in Sec. 16 of this
Rule 3 and the action continues until the entry of final judgment.
However, execution shall not issue in favor of the winning party.
The final judgment should be filed as a claim against the estate of
the decedent without need of proving the claim.
In other words, when there was a defect the heirs however cannot
use that because they themselves appeared and continued the
case. So, in effect, there was estoppel.
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.
No requirement for service of summons
Service of summons is not required to effect a substitution.
Nothing in Sec. 16 of this Rule mandates service of summons.
Instead of service of summons the court shall, under the authority
of the same provision, order the legal representative of the
deceased to appear and be substituted for the said deceased
within 30 days from notice.
Under the OLD RULES, the case shall be dismissed. So, the civil case
is not suspended but it will be dismissed and the creditor can file a
case against the estate of the deceased under the Rules on Special
Proceedings. But definitely the civil case dies when the defendant
dies.
By virtue of the same rule, it is significant to know that it is not the
amendment of the pleading, but the order of substitution and its
service that effects the substitution of the deceased by his
representative or heir.
Now, under the NEW RULE, the case will not be dismissed but
rather, the case will now continue until entry of final judgment.
Meaning, until it becomes final and executory.
Note: If the action does not survive (like the purely personal actions
of support, annulment of marriage, and legal separation), the court
shall simply dismiss the case. It follows then that substitution will
not be required.
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 the property of the defendant?
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
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.”
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)
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 Is that an ACTION WHICH DOES NOT SURVIVE
or an ACTION WHICH SURVIVES?
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ACTION WHICH DOES NOT SURVIVE
2a2c) If the defendant died after levy or
execution but before the auction sale,
we will now apply Section 7[c] of Rule 39:
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.
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
Example: The husband files a case against the wife for annulment
of marriage or legal separation. One of them dies. 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 .
(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)
Q: So, what is the effect of the death of the party in actions which
does not survived?
A: The case is dismissed!
1)
Meaning, if death occurs after the levy, auction sale proceeds as
scheduled. And if there is an excess, the excess shall be delivered to
the administrator or executor.
ACTIONS WHICH SURVIVE –
2a.) 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.
2b.) 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.)
2a2.) If it is the defendant who dies, the
question is when did he die? 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.
If a party dies in an action which survives which is a noncontractual 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.
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.
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] The purpose there is,
so that the creditor will share with the
other creditors pro-rata in the
distribution of the estate.
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 vs CA 250 SCRA
305). 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
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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)
by his legal guardian or guardian ad litem.
(19a)
EXAMPLE: F files a case against K. While the case is pending, K
becomes insane. The case will continue but K has to be assisted by
his guardian ad litem.
This is related to Rule 3, Section 3 on representative party but in
Section 3, K should be already insane before the case is filed.
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)
General Rule: The rule does not consider the transferee an
indispensable party. Hence, the action may proceed without the
need to imp lead him.
Requisites:
1)
public officer is a party to an action in his official
capacity;
2)
during the pendency of the action he either dies, resigns,
or other wise ceases to hold office;
3)
it is satisfactorily shown to the court by any party, within
30 days after the successor takes office, that there is a
substantial need for continuing or maintaining the
action;
Exception: When the substitution by or joinder of the transferee is
ordered by the court.
A transferee pendent lite:
4)
that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor; and
5)
the party or officer affected has been given reasonable
notice of the application therefor and accorded an
opportunity to be heard.
1)
2)
The case will be dismissed if the interest of plaintiff is transferred
to defendant unless there are several plaintiffs, in which case, the
remaining plaintiffs can proceed with their own cause of action.
EXAMPLE: R files a case against L to recover a piece of land. While
the case is pending, L sold the land to E. E now assumes the risk
and takes the property subject to the outcome of the case.
Q: What will happen to the case?
A: The following:
1)
Q: Can the case continue against L?
If the successor intends to continue with the policy.
A: YES.
EXAMPLE: Mayor Pascua threatened to demolish 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)
stands in exactly the same position as its predecessor-ininterest, th original defendant; and
bound by the proceedings had in the case before the
property was transferred to it, even if not formally
included as defendant. (Herrera, vol. 1 p. 405)
1)
2)
3)
If L loses and cannot pay, E is subsidiarily liable;
L can be removed and E will be substituted; or
L can stay and E will be added.
In all 3 cases, E will be bound by the judgment.
If the successor does not adopt the policy, the case will
be dismissed.
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,
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
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shelter and basic necessities for himself and
his family.
vs. Dolefil Agrarian Reform Beneficiaries Cooperative 382 SCRA
552).
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.
EXAMPLE: M files a case against K for declaration of nullity on the
ground of psychological incapacity. K 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.
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-parte 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.
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)
The rule is that only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines and that actions
filed in the name of the Republic of the Philippines or its agencies
and instrumentalities, if not initiated by the Solicitor General will
be summarily dismissed. The authority of the Solicitor General is
embodied in Sec. 35(1) Chapter 12, Title III and Book IV of the
Administrative Code of 1987 (Cooperative Development Authority
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Rule 4
the court may do so without need of waiting for the filing of a
motion to dismiss. (Sec. 4, Rules on Summary Procedure)
VENUE OF ACTIONS
How venue is determined
Q: Define venue.
As said before, in order to know the venue of a particular action,
the initial step is to determine if the action is personal or real. If it is
personal, the venue is transitory hence, the venue is the residence
of the plaintiff or the defendant at the option of the plaintiff. If the
defendant is a non-resident, the venue is the residence of the
plaintiff or where the non-resident defendant may be found, at the
election of the plaintiff.(Sec. 3)
A: VENUE is the place, or the geographical area where an action is
to be filed and tried. In civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court. (Manila Railroad
Company vs. Attoryney General, 20 Phil. 523)
Venue not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is not
a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro, 324
SCRA 591 [2000]). Venue becomes jurisdictional only in a criminal
case. In the latter case, where the information is filed in a place
where the offense was not committed, the information may be
quashed for lack of jurisdiction over the offense charged. (Sec. 3, R
117) This is not so in a civil case where improper venue is not
equivalent to lack of jurisdiction. Because it is merely procedural,
the parties can waive the venue of a case.
If the action is real, the venue is local hence, the venue is the place
where the real property involved, or any portion thereof, is
situated. (Sec. 1). However, when the defendant is a non-resident
and is not found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of the defendant
located in the Philippines, the venue is the residence of the plaintiff
or where the property or any portion thereof is situated. (Sec. 3)
VENUE OF REAL ACTIONS
Means of waiving venue:
1.
2.
3.
4.
5.
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.
failure to object via motion to dismiss;
affirmative relief sought in the court where the case is
filed even if venue is improper;
affirmative defense in an answer;
voluntary submission to the court where the case is filed;
laches
Dismissal based on improper venue
1)
2)
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)
The trial court cannot motu proprio dismiss a case on the
ground of improper venue. The court may motu proprio
dismiss an action in case of lack of jurisdiction over the
subject matter, litis pendencia, res judicata and
prescription, but not for improper venue. (Rudolf Lietz
Holdings, Inc. v. Register of Deeds of Paranaque City, 344
SCRA 68; Universal Robina Corp. v. Lim GR 154338, Oct.
5, 2007)
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.
Unless and until the defendant objects to the venue in a
motion to dismiss, the venue cannot be truly said to be
improperly laid, because the venue although technically
wrong may be acceptable to the parties for whose
convenience the rules on venue have been devised. The
trial court cannot preempt the defendant’s prerogative
to object to the improper laying of the venue by motu
proprio dismissing the case. (Dacuycoy v. IAC 195 SCRA
641)
The venue is the placed where the real property or any portion
thereof is located.
If a property is located at the boundaries of two places: file the
case in either place at the option of the plaintiff.
When the case involves two properties located in two different
places:
When court may motu proprio dismiss based on improper venue
1)
The court may dismiss on improper venue, at its instance, in an
action covered by the rules on summary procedure. Under these
rules, the court may motu proprio dismiss a case from an
examination of the allegations of the complaint and such evidence
as may be attached thereto on any of the grounds apparent
therefrom. The dismissal may be made outright, which means that
2)
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if the properties are the object of the same transaction,
file it in any of the two places; and
if they are the subjects of two distinct transactions,
separate actions whould be filed in each place unless
properly joined.
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VENUE OF PERSONAL ACTIONS
But there are also actions which appear to be real but in reality, are
personal actions. Like what happened in the case of
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)
LA TONDEÑA DISTILLERS INC vs. PONFERRADA - 264 SCRA 540
[1996]
FACTS: A entered into a contract where she committed
herself to sell her land to B. A even placed a lis pendens on
the property but later she backed out. So B will file a case
against A for specific performance to compel her to sign the
deed of sale.
Venue of personal actions:
1)
2)
3)
Where the plaintiff or any of the principa plaintiffs
resides;
where the defendant or any of the principal defendants
resides; or
in case of a non-resident defendant but found in the
Philippines, in the place where he may be found.
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, which is the reason why he is
still filing the case to compel him to sell.
Note: All at the election of the plaintiff.
Thus, it should be filed at 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])
Situation: suppose, there are four (4) plaintiffs and 4 defendants
and the 4 plaintiffs reside in 4 different cities or municipalities. So
there are 8 choices for venue because the law says, “where the
plaintiff or any of the principal plaintiffs or where the defendant or
any of the principal defendants reside…”
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because
there is such a thing as nominal defendant and nominal plaintiff..
EXAMPLE of a nominal party: When a party wants to file a case to
annul an execution sale or to annul a levy, normally it impleads 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.
Q: Where several or alternative reliefs are sought in an action, and
the reliefs prayed for are real and personal, how is venue
determined?
This is the original concept of forum shopping which is legitimate
but had later been abused. That is why there is a SC case where
Justice Panganiban cited the history of forum shopping entitled
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996)
A: Where several or alternative reliefs are prayed for in the
complaint, the nature of the action as 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)
How to distinguish real from personal action
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.
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)
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 or a deed of sale over
a parcel of land which we made one year ago which land is situated
in Mandaue City and the purpose of my action is to recover the
ownership of that land is this a real or personal action?
Now, going back to Section 2.
It is a real action because the primary object of the suit is to
recover the ownership of real property. It seems to be personal but
in reality it is a real action. So the venue is governed by Section 2.
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RESIDENCE OF THE PARTIES
The ruling in the case of ANTILLON was reiterated in the 1993 case
of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS (223 SCRA
670)
Where is the residence of the parties? Because residence in law
could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL
OR PHYSICAL RESIDENCE.
Because the law said “where the plaintiff or any of the principal
plaintiffs..” So if the corporation is suing with someone from Cebu
City, even if its head office is in Manila, the corporation can file in
Cebu City 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.
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 casesalready: 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).
“OR IN THE CASE OF A NON-RESIDENT DEFENDANT WHERE HE
MAY BE FOUND”
EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE – 100 Phil 221
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?
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 he
rented an apartment in Manila.
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.
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.
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, you met him as your friend
and the first thing he requested you is if he could borrow some
pesos because his money is in dollars. He borrowed from you
P15,000.00 promising to pay in a week’s time.. 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, where is the
venue of the action?
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.
RESIDENCE OF A CORPORATION
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.
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.
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 non-resident defendant but
temporarily staying in the Philippines.
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.
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 longer
residing here and is not found in the Philippines?
ISSUE: Is a corporation 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.
A: NO, you cannot. Charge it to experience.
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Q: Why can you not sue a person not residing here in the
Philippines and is not found here in the first place?
An action may be filed only when:
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, subject and since
the res is here, the judgment can be enforced. It is not a useless
judgement anymore.
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 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.
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 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 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:
Q: What is the difference between the non-resident defendant in
Section 2 and the non-resident defendant in Section 3?
1)
2)
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.
action in rem; or
at least quasi-in rem.
In the examples given, if the action is for compulsory recognition,
that is actually an action in rem. In the suit which involves a
property here in the Philippines, at least that is an action quasi-in
rem.
Venue of ordinary civil actions against non-residents:
2)
The action affects the property or any portion thereof of
said defendants is located here in the Philippines, and
venue is the place where the property or any portion
thereof is located.
Q: Can the child file a case for compulsory acknowledgment here in
the Philippines against the father for compulsory acknowledgment?
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.
Non-resident but found in the Philippines;
b)
2.)
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 I sue the non-resident defendant?
a)
The action affects the personal status of the plaintiff
and venue is the place where the plaiantiff resides; or
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
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.
1)
1.)
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.
for personal actions, where the plaintiff resides or
where he may be found at the election of the
plaintiff;
for real actions, where the property is located.
Q: Where is now the proper venue of the action against the nonresidents?
Non-resident not found in the Philippines
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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
While the first two rarely pose a problem, the third has been a
source of controversy in the past.
A stipulation that “any suit arising from this contract shall be filed
only in Quezon City” is exclusive in character and is clear enough to
preclude the filing of the case in any other place. In this case, the
residences of the parties are not to be considered in determining
the venue of the action.
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)
How about a stipulation that the “parties agree to sue and be sued
in the courts of Manila?”
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES
OTHERWISE;
POLYTRADE CORP. vs. BLANCO – 30 SCRA 187
Q: What cases provide for venue of the action which may be
different from what Rule 4 says?
FACTS: C and J are both residing here in Cebu City. J borrowed
money from C, and executed a promissory note in favor of the
latter which says, “I promise to pay C 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.”
A: The following:
1.)
A civil action arising from LIBEL under Article 360 of the
Revised Penal Code.
When the note matured, J did not pay so C filed a case to
collect the unpaid loan here in Cebu City but J challenged the
venue on ground that the venue is agreed upon which is
Manila. According to C, the venue is correct because both of
us are residing here in Cebu City and under Rule 4, the venue
is where I reside or you reside, at my option.
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 in the RTC of the:
a.)
b.)
province or city where the libelous article is
printed and first published; or
where any of the offended parties actually
resides at the time of the commission of the
offense.
ISSUE: Who is correct in this case?
HELD: Plaintiff is correct notwithstanding the stipulation.
Why? When. the parties stipulated on the venue of the civil
action, other than those found in the Rule of Court, the
stipulated venue is considered merely as an 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.
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.)
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.
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.
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING
BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE
THEREOF.
Of course, there are stipulations where you can see clearly the
intention of the parties to limit the venue. 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.
The parties may agree on a specific venue which could be in a place
where neither of them resides. Take note that the stipulation must
be:
1)
2)
3)
in writing;
made before the filing of the action and
exclusive as to the venue.
The Polytrade doctrine was further applied in the case of
Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this case, it
was ruled that a stipulation stating that “all suits arising out of this
Agreement shall be filed with/in the proper courts of Quezon City,”
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is only permissive and does not limit the venue to the Quezon City
courts. As explained the said case:
“In other words, unless the parties made very clear, by employing
categorical and suitably limiting language, that they wish the venue
of the actions between them to be laid only and exclusively at a
definite place, and to disregard the prescriptions of Rule 4,
agreements on venue are not to be regarded as mandatory or
restrictive, but merely permissive, or complementary of said
rule.xxxThere must be, to repeat, accompanying language clearly
and categorically expressing their purpose and design that actions
between them be litigated only at the place named by them,
regardless of the general precepts of Rule 4; and any doubt or
uncertainty as to the parties’ intentions must be resolved against
giving their agreement a restrictive or mandatory aspect. Any other
rule would permit of individual, subjective judicial interpretations
without stable standards, which could well result in precedents in
hopeless inconsistency.”
“In case of litigation hereunder, venue shall be in the City
Court or Court of First Instance of Manila as the case
may be for determination of any and all questions arising
thereunder.” (Phil. Bank of Communications v. Trazo, GR
165500, Sug. 30, 2006)
c.
“It is hereby agreed that in case of foreclosure of this
mortgage under ACT 3135, as amended, and Presidential
Decree No. 385, the auction sale shall be held at the
capital of the province, if the property is within the
territorial jurisdiction of the province concerned, or shall
be held in the city, if the property is within the territorial
jurisdiction of the city concerned”(Langkaan Realty
Development, Inc. v. UCPB GR 139427, Dec. 8, 2000)
d.
“All court litigation procedures shall be conducted in the
appropriate courts of Valenzuela City, Metro Manila”
(Auction in Malinta, inc. v. Luyaben GR 173979, Feb. 12,
2007)
Examples of words with restrictive meanings are: xxx “only”,
“solely”, “exclusively in this court”, “in no other court save –“,
“particularly”, “nowhere else but/except --, or words of equal
import xxx” (Pacific Consultants International Asia, Inc. v.
Schonfeld, GR 166920 Feb. 19, 2007)
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
Cases like Hoechst, Inc. v. Torres, 83 SCRA 297 and Bautista v. de
Borja 18 SCRA 474 and other rulings contrary to the Polytrade
doctrine are deemed superseded by current decisions on venue.
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 Supena v. de la Rosa 334 Phil. 671, it was ruled that Hoechst had
been rendered obsolete by recent jurisprudence applying the
doctrine enunciated in Polytrade (Auction in Malinta Inc. v.
Luyaben)
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.
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.
When stipulation would be contrary to public policy of making
courts accessible to all who may have need of their service
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.
The following stipulations were likewise treated as merely
permissive and did not limit the venue:
a.
b.
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 the case in the former CFI, now RTC, of
xxxThe agreed venue for such action is Makati, Metro
Manila, Philippines (Mangila v. CA 435 Phil. 870).
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Cagayan de Oro City because the plaintiffs are residents of
Cagayan de Oro City.
Upon his return to Cagayan, he filed an action for damages
against 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 and RCPI filed a motion to dismiss citing as ground
improper venue.
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.
The trial court granted the motion. 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.
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 manager and their own lawyer.
HELD: The ruling in Sweet Lines vs. Teves does not apply. You
are bound by the stipulation. Why? You are a lawyer so you
klnow the implication of the stipulation signed.
Q: Distinguish JURISDICTION from VENUE.
A: The following are the distinctions:
1)
ISSUE: Whether or not Cagayan de Oro is the proper venue.
HELD: YES. Judge Teves was correct in not dismissing the case.
JURISDICTION refers to the authority of the court to
hear the case, whereas
VENUE refers only to the place where the action is
to be heard or tried;
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.
2)
JURISDICTION over the subject matter cannot he
waived; whereas
VENUE is waivable and can be subject of agreement;
3)
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.
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 establishes a relation between the
court and the subject matter; whereas
VENUE creates a relation between the plaintiff and
defendant, or petitioner and respondent; and
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.
5)
ARQUERO vs. FLOJO – 168 SCRA 54
JURISDICTION or lack of it over the subject matter
is a ground for a motu proprio dismissal; whereas
VENUE is not except in cases subject to summary
procedure.
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 a
Congressman in stating: I will go there to Manila, I will see
you in your office on this particular date.
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.
When he went to the office of the congressman after a few
days, who was mad at him telling him “So you are here to ask
for a favor for your own but your telegram was charged
collect! Arquero was stunned and embarrassed because he
paid for the telegram.
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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
statements or admissions made in his pleading and cannot be
permitted to take a contradictory position. (Santiago v. de los
Santos 61 SCRA 146)
KINDS OF PLEADINGS
Construction of ambiguous allegations in 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)
In case there are ambiguities in the pleadings, the same must be
construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in. This rule proceeds
from the theory that it is the pleader who selects the language
used and if his pleading is open to different constructions, such
ambiguities must be at the pleader’s peril. (61 Am Jur, Pleading)
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) Under the Rules, “pleadings” cannot be oral
because they are clearly described as “written” statements.
System of pleading in the Philippines
The system is the Code Pleading following the system observed in
some states of the US like California and New York. This system is
based on codified rules or written set of procedure as distinguished
from common laws procedure. (Marquez and Gutierrez Lora v.
Varela, 92 Phil. 373)
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.
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.
Necessity and purpose of pleadings
1)
2)
3)
Pleadings are necessary to invoke the jurisdiction of the
court (71 C.J.S. Pleadings). It is necessary, in order to
confer jurisdiction on a court, that the subject matter be
presented for its consideration in a mode sanctioned by
law and this is done by the filing of the complaint or
other pleading. Unless a complaint or other pleading is
filed, the judgment of a court of record is void and
subject to collateral attack even though it may be a court
which has jurisdiction over the subject matter referred
to in the judgment.
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)
Pleadings are intended to secure a method by which the
issues may be properly laid before the court. (Santiago v.
de los Santos 61 SCRA 146).
Section 2 tells us what pleadings are allowed by the Rules of Court.
In a civil case, there are actually two (2) contending parties:
Pleadings are designed to present, define and narrow
the issues, to limit the proof to be submitted in the trial,
to advise the court and the adverse party of the issues
and what are relied upon as the causes of action or
defense. (71 CJS)
1)
2)
the person suing or filing a claim; and
the person being sued or defending.
Q: If you are the claimant or the plaintiff, in what pleading do you
assert your claim?
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.
A: Complaint, counterclaim, cross-claim, third-party complaint or
fourth-party complaint, etc.
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.
Construction of pleadings
In this jurisdiction, all pleadings shall be liberally construed so as to
do substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA
88). Pleadings should receive a fair and reasonable construction in
accordance with the natural intendment of the words and language
used and the subject matter involved. The intendment of the
pleader is the controlling factor in construing a pleading and should
be read in accordance with its substance, not its form.
In the 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
While it is the rule that pleadings should be liberally construed, it
has also been ruled that a party is strictly bound by the allegations,
That is the pattern.
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Q: Summarizing all of them, what are the known pleadings
recognized by the law on Civil Procedure?
Q: Define complaint
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 initiates the civil action.
A: There are seven (7) types of pleadings:
1)
2)
3)
4)
5)
6)
7)
Complaint;
Answer;
Counterclaim;
Cross-claim;
Reply
Third (Fourth, Fifth, etc.) – Party Complaint;
Complaint-in-Intervention.
Rule 8 requires that it should contain a concise statement of the
ultimate facts constituting the plaintiff's cause of action not
evidentiary facts or legal conclusions.
Pleadings allowed under the Rules on Summary Procedure
Ultimate facts refer to the essential facts constituting the plaintiff's
cause of action.
Note however, that when a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are:
The fact is essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient.
1)
2)
3)
4)
Test of sufficiency of the facts alleged in the complaint:
Complaint;
Compulsory Counterclaim;
Cross-claim pleaded in the Answer; and
Answers thereto (Sec. 3 [A]II, Rules on Summary
Procedure)
Determine whether upon the averment of facts, a valid judgment
may be properly rendered.
What are not ultimate facts:
Permissive Counterclaims, third-party complaints, reply and
pleadings-in-intervention are prohibited. (Sec. 9, IV)
1)
2)
Pleading and motion
1.)
2.)
4)
a pleading may be initiatory like a complaint while a
motion can never be such as it is filed in a case that is
already pending in court;
3.)
A pleading is always filed before judgment while a
motion may be filed after judgment;
4.)
There are only 9 kinds of pleadings while any application
for a relief other a judgment can be made in a motion'
however, there are only three motions which actually
seek judgment namely:
a)
b)
c)
5.)
3)
the purpose of a pleading is to submit a claim or defense
for appropriate judgment while the purpose of a motion
is to apply for an order not included in the judgment;
evidentiary or immaterial facts;
legal conclusions, conclusions or inferences of facts from
facts not stated, or incorrect inferences or conclusions
from facts stated;
the details of probative matter or particulars of
evidence, statements of law, inferences and arguments;
an allegation that a contract is valid or void is a mere
conclusion of law.
For EXAMPLE: Mr. P wants to sue Mr. R to collect an unpaid loan.
Mr. R borrowed money from Mr. P 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. P, of legal age, is a resident of 79 P. del
Rosario St., Cebu City; whereas defendant Mr. R
also of legal age, is a resident of 29 Pelaez St. Cebu
City where summons and other processes of this
court may be served;
2)
On Nov. 7, 2008, defendant secured a loan from
plaintiff in the sum of P30,000.00 payable within
one (1) year form said date with legal interest;
3)
The account is already due and despite repeated
demands, defendant failed and refused to pay;
a motion for judgment on the pleadings (R 34);
a motion for summary judgment (R 35);
Demurrer to Evidence
a pleading must be written while a motion may be oral
when made in open court or in the course of a hearing or
trial.
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.
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.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
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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.
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.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading in
which a defending party sets forth his
defenses. (4a)
EXAMPLE: The complaint says in paragraph 2, “On November 6,
2008, defendant secured a loan from plaintiff in the amount of
P30,000.00 payable one (1) year from November 6,2008.
Q: What is the pleading where you respond?
The defendant will say in his answer:
A: It is called the ANSWER. That is where you will state your
defenses. That is why an ANSWER is called a Responsive Pleading.
“Defendant specifically denies the allegation in
Paragraph 2 of the complaint. The truth of the
matter being that he never secured any loan from
plaintiff because he does not even know the
plaintiff and he did not see his face before.”
Q: Why is it called “Responsive Pleading”?
A: Because it is the pleading which is filed in response to the
complaint or a pleading containing a claim. It is where you respond
to the cause of action. That is where you state your defenses.
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”.
So you can file an answer to the complaint; answer to the
counterclaim, answer to the cross-claim, etc.
It is something which is not found in Criminal Procedure.
Insufficient denial or denial amounting to admissions:
Q: If you are charged with a crime, how do you answer?
1.
2.
A: By pleading guilty or not guilty. That is the answer. When you
plead guilty, and the offense is not punishable by reclusion
perpetua to death it is the end.
General denial; and
denial in the form of negative pregnant
Negative pregnant is a denial in such form as to imply or express
an admission of the substantial fact which apparently is
controverted. It is form of denial which really admits the important
facts contained in the allegations to which it relates.
There is no writing of defenses, no written answer in criminal
cases. It (pleadings) only applies to civil cases where you allege
your defenses.
While it is a denial in form, its substance actually has the effect of
an admission because of a too literal denial of the allegations
sought to be denied. This arises when the pleader merely repeats
the allegations in a negative form.
Q: What are the defenses under the Rules?
A: That is Section 5.
In the example above, when the answer states:
Sec. 5 – Defenses – Defenses may either be
negative or affirmative.
"The defendant did not secure a loan from the plaintiff on Nov. 6,
2008 in the amount of P30,000.00 payable within one year."
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.
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
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.
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.
Defenses may either be negative or affirmative.
EXAMPLE: Defendant may say: Defendant admits the allegation in
par. 2 of the Complaint, but alleges that the action has prescribed.
b.) Answer; NEGATIVE DEFENSES;
Q: Define a NEGATIVE defense.
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He confesses to having borrowed money but avoids liability by
asserting prescription.
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.
Examples of affirmative defenses are: 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.
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.
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.
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 in kind from that sought by
the opposing party. (De Borja vs. De Borja, 101 Phil. 911)
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.”
Q: You file a case against me for recovery of unpaid loan. My
counterclaim is, rescission of partnership contract.
Is the
counterclaim proper?
c.) COUNTERCLAIMS
A: Yes although there is no connection between what you are
asking and what my answer is. But what is important is that we are
the same parties. If you will not allow me to file my counterclaim
against you, that will be another case in the future. So to avoid
multiplying suits, clogging the dockets of the court and making the
proceedings more expensive, violating the purpose of the rules, the
parties are allowed to include all their claims against each other in
one case.
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 damage 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.
Same capacity rule
DE BORJA vs. DE BORJA - 101 Phil 911
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.
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 stated that W has a claim against X. W
filed a counterclaim against X in the case.
Nature of a counterclaim
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.
A counterclaim is in the nature of a cross-complaint. Although it
may be alleged in the answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the original complaint.
For this this reason it is to be answered within ten (10) days from
service.
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.
According to a lawyer who is fluent in Cebuano, he called it balos.
He was explaining to his client that they have counterclaim.
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PERMISSIVE & COMPULSORY
COUNTERCLAIMS
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.
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 whom the court
cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction
of the court both as to the amount and the
nature thereof, except that in the original
action before the Regional Trial Court, the
counterclaim may be considered compulsory.
Discussion of the elements
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.
Under the Rules, there are two types of counterclaim:
1)
2)
COMPULSORY COUNTERCLAIM and,
PERMISSIVE COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a
counterclaim compulsory and when is it permissive?
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.
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 whom 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)
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.”
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?
The defending party has a counterclaim at the time he
files his answer.
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.
The fifth requisite is not found in Section 7 but in Rule 11, Section
8:
PROBLEM: T 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, “T, I spent a lot of money for
necessary expenses to preserve the land. You are also liable to
reimburse me for the expenses for the necessary improvements 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
Rule 11, Sec. 8. Existing counterclaim or crossclaim. - A compulsory counterclaim or a crossclaim 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.
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of land, I am now asking her to reimburse me for all necessary
expenses that I spent on the land.
PROBLEM: V 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 V. 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: 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.
Q: What will happen to my case now?
PROBLEM: T files a case against me for recovery of a piece of land.
My counterclaim against her is damages arising from a vehicular
collision.
A: My case will be dismissed because I did not raise that cause of
action as a counterclaim as it is compulsory.
Q: Is my counterclaim arising out of a subject matter of your
action?
PROBLEM: A files a case against me for recovery of a piece of land.
After trial, the decision is against me. The court said that I should
return the land to her. 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.
A: NO. It is completely different. Thus, that is a permissive
counterclaim.
MELITON vs. CA – 216 SCRA 485
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My
cause of action against her is damages arising against a vehicular
collision.
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: Is the counterclaim allowed?
A: Yes, allowed.
Q: My decision is not to file a counterclaim but to file another case
against her. Is that allowed?
Logical Relationship Test
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 decide to file another
action against you. That is the importance between a compulsory
counterclaim and a permissive counterclaim.
The logical relationship test between the claim and the
counterclaim has been called: The one compelling test of
“compulsoriness.” Under this test, any claim a party has against an
opposing party that is logically related to the claim being asserted
by the opposing party, and that it is not within the exception to the
rule is a compulsory counterclaim. Its outstanding quality is
flexibility. (Tan v. Kaakbay Finance Corporation 404 SCRA 518)
Third Requisite: IT DOES NOT REQUIRE FOR ITS
ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM THE
COURT CANNOT ACQUIRE JURISDICTION.
Q: What is the importance of determining whether the claim is
compulsory or permissive?
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, if I don’t allege it as
counterclaim in my answer, I will not be barred from filing a
separate action.
A: A compulsory counterclaim must be invoked in the same action.
It cannot be the subject matter of a separate action. Unlike in
permissive counterclaim 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:
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
NATURE THEREOF
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)
Rules:
1)
Let us try to apply that principle to the case cited.
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2)
In an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount.
3)
However, the nature of the action is always material
such that unlawful detainer cannot be set up in the RTC.
4)
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.
If a counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered waived
(Agustin v. Bacalan GR No. 46000, March 18, 1985)
Q: How can the RTC try a counterclaim when the claim is only
P50,000?
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy
where a counterclaim is beyond the jurisdiction of the MTC is to set
off the claims and file a separate action to collect the balance.
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.
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.
Review: In the Law on Property, even if you are a possessor in bad
faith, you are 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.
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.
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 P350,000.
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.
Q: Should you raise it as a compulsory counterclaim in the forcible
entry case?
A: NO.
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
Q: Does it arise out of or connected with the transaction which is
the subject matter of the main action? Why not compulsory?
MACEDA vs. CA – 176 SCRA 440
A: Because the MTC has no jurisdiction over the P350,000 amount
for the necessary expenses. This time, that is the missing element.
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.”
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.
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT
THE TIME HE FILES HIS ANSWER
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.
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?
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So, those are the five essential elements. You remove one, the
counterclaim becomes permissive.
counterclaim, he must choose only one remedy. If he decides to file
a motion to dismiss, he cannot set up his counterclaim. But if he
opts to set up his counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
Q: Again. What is the importance of distinguishing whether the
counterclaim is compulsory or permissive?
COUNTERCLAIMS IN CRIMINAL CASES
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).
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.
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.
Gutierrez in turn filed a civil action for damages against the
Javier spouses in the RTC of Catarman, Northern Samar,
where he accused the spouses of having tricked him into
signing the check.
Compulsory and Permissive Counterclaim compared:
1)
2)
A compulsory counterclaim arises out of or is necessarily
connected with the transaction or occurrence that is the
subject matter of the other party's claim, while a
permissive counterclaim is not;
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.
A compulsory counterclaim does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction while a permissive
counterclaim may require such;
3)
A compulsory counterclaim is barred it not set up in the
action, while a permissive counterclaim is not;
4)
A compulsory counterclaim need not be answered, no
default, while a permissive counterclaim must be
answered otherwise the defendant can be declared in
default.
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.
A plaintiff who fails or chooses not to answer a compulsory
counterclaim may not be declared in default, principally because
the issues raised in the counterclaim are deemed automatically
joined by the allegations of the complaint (Gojo v. Goyala, GR No.
26768, Oct. 30, 1970)
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.
General Rule: A compulsory counterclaim not set up in the answer
is deemed barred.
Exceptions:
1.
if it is a counterclaim which either matured or was
acquired by a party after serving his answer. In this case
it may be pleaded by filing a supplemental answer or
pleading before judgment (Sec. 9 R 11);
2.
When a pleader fails to set-up a counterclaim through
oversight, inadvertence, excusable negligence, or when
justice requires, he may, by leave of court, set up the
counterclaim by amendment of the pleading before
judgment (Sec. 10, R 11).
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—
The filing of a motion to dismiss and the setting up of a compulsory
counterclaim are incompatible remedies. In the event that a
defending party has a ground for dismissal and a compulsory
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CABAERO vs. CANTOS - 271 SCRA 392
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 crossclaimant.(7)
NOTE: Here, the Javier ruling was set aside.
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.”
A cross claim is a claim by one party against a co-party. It may be a
claim by defendant against his co-defendant arising out of the
subject matter of the main action.
Examples:
“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.”

In an action for damages against the judgment creditor
and the Sheriff for having sold real property of the
plaintiff, the Sheriff may file a cross-claim against the
judgment creditor for whatever amount he may be
adjudged to pay the plaintiff.

In an action against a co-signer of a promissory note one
of whom is merely an accommodation party, the latter
may file a cross-claim against the party accommodated
for whatever amount he may be adjudged to pay the
plaintiff.

J and P are solidary debtors for the sum of P100,000.00
because they signed a promissory note in favor of D to
collect the sum of P100,000.00. However, although J
signed the promissory note, he did not get a single
centavo. Everything went to P. Both of them are now
sued. According to J, “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
P!” Therefore, J will now file a case against P where he
will allege that if J will be held liable to D, P will
reimburse him (J). So, J will also file a claim in the same
action against P.
“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.
Now, the claim filed by J against his co-defendant P is
called a CROSS-CLAIM where J is called defendant in the
case filed by D and a cross-claimant against P. P is also
the defendant in the case filed by D and a crossdefendant with respect to the cross-claim filed by J. So
that is another case which a defendant is filing against
another defendant.
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:
Limitations on Cross-Claim
“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.”
1.
2.
3.
Must arise out of the subject matter of the complaint or
counterclaim;
Can be filed only against a co-party; and
Is proper only when the cross claimant stands to be
prejudiced by the filing of the action against him.
D.) CROSS-CLAIMS
Purpose: To settle in a single proceeding all the claims of the
different parties in the case against each other in order to avoid
multiplicity of suits (Republic vs. Paredes, GR No. L-12548, May 20,
1960).
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
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Take note that the cross-claim of J against P is merely an off-shoot
of the case filed by D against J and P. Meaning, it arises out of the
same transaction or occurrence that is the subject matter of the
case filed by D against them.
cross-claim may arise either out of the original action or counterclaim therein.
EXAMPLE: J and P file a case against D. D files his answer with a
counterclaim against the plaintiffs J and P. So J and P will now
become defendants with respect to the counterclaim filed by D. So
J now can file a cross-claim against P arising out of the
counterclaim.
PROBLEM: Suppose D files a case against J and P to collect a
promissory note signed by J and P and J alleges in his cross claim,
“Well, since we are already here, I also have a claim against P for
damages arising from a vehicular collision.”
HYPOTHETICAL EXAMPLE:
Q: Is the cross-claim allowed in the problem?
1.)
A: NO. The cross-claim is improper. It has no connection with the
complaint of D against J and P. A counter-claim must always arise
out of a transaction or occurrence that is the subject matter of the
main action.
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)
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSSCLAIM.
MORTZ and CHARLES, plaintiffs
-versus-
A: The following are the distinctions:
1)
JET and PAO, defendants
A COUNTERCLAIM is a complaint by the defendant
against the plaintiff, whereas,
2.)
A CROSS-CLAIM is a claim by a defendant against a
co-defendant;
2)
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET, now cross-claimant
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 crossclaim (RUIZ, JR. vs. CA, infra). Whereas,
-versusDefendant PAO, now cross-defendant
3.)
In a COUNTERCLAIM, you can kill the main action,
still the counterclaim survives.
3)
Now, according to Jet, every centavo of the loan went to
Pao. So Jet files a cross-claim against Pao:
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,
Jet also says, “Actually I have a case against Mortz and
Charles because they entered my land and gathered
some of its product”. So, he filed a counterclaim against
both Mortz and Charles. In the counter-claim of Jet, the
defendants are Mortz and Charles for the accounting of
the improvements on the land:
COUNTERCLAIM OF JET
A CROSS-CLAIM must always arise out of the same
transaction or occurrence that is the subject matter
of the action.
Defendant JET, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now co-defendants
Example: P case filed against J to collect a loan. J
files a COUNTERCLAIM against P to recover a piece
of land. That is allowed and that is a permissive
counterclaim. But suppose D files a case to collect a
loan against J and P. J files a CROSS-CLAIM against P
to recover a piece of land.
4.)
Mortz now will answer the counterclaim of Jet, “Actually,
the damages on land was not caused by me but Charles.
So Mortz files a cross-claim against co-plaintiff Charles
arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Q: Will it be allowed?
Plaintiff MORTZ, now cross-claimant
A: Not allowed! It has no connection with the
subject matter of the main action.
-versusPlaintiff CHARLES, now cross-defendant
Take note that a cross-claim is any claim by one party against a coparty arising out of the transaction of occurrence that is the subject
matter of the original action or of a counterclaim therein. So, a
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5.)
6.)
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, P filed a
counterclaim against Mortz and Charles for the damage
of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now defendants
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
complaint has been dismissed?
There is an opinion to the effect that the dismissal of the complaint
carries with it the dismissal of a cross-claim which is purely
defensive but not a cross claim seeking an affirmative relief.
If a cross-claim is not set up, it is barred: except
But Charles says, “I’m not the owner of the car but
Mortz. So he files a cross-claim against Mortz:
1)
when it is outside the jurisdiction of the court;
2)
if the court cannot acquire jurisdiction over third parties
whose presence is necessary for the adjudication of said
cross-claim. In which case, the cross-claim is considered
permissive;
3)
cross-claim that may mature or may be acquired after
service of the answer (Riano 2007, p. 285)
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO
Plaintiff CHARLES, now cross-claimant
-versusPlaintiff MORTZ, now cross-defendant
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
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 case 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.
Sec. 9. Counter-counterclaims and countercross-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 countercounterclaim and counter-cross-claim. The concept of countercounter-claim is not new. As a matter of fact, that was asked in the
bar years ago.
RUIZ, JR. vs. CA – 212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a crossclaim against Pao. After a while, the case against Jet and Pao
was dismissed.
EXAMPLE: C filed against you an action to collect a loan. You filed a
counterclaim against her to recover a piece of land. Of course, she
has 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, she files an 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 counterclaim to a
counterclaim.
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.
COUNTER-CROSS-CLAIM
“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 crossclaim 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”
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.
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. If the complaint is dismissed the counterclaim of Jet can
still remain alive even if the main action is dead.
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged,
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such claims shall be set forth in an amended
or supplemental complaint.(11)
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and
REPLY.
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.
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;
Q: Can I file a pleading to dispute your defense?
2)
A: Yes, that pleading is called a REPLY.
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.
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.
OUTLINE OF FLOW OF PLEADINGS
An answer is a response to the complaint and the reply is a
response to the answer.
Q: Assuming that you would like to answer my reply, what
pleading would you file?
The filing of a REPLY is generally optional, whereas
PLAINTIFF
1.
DEFENDANT
Complaint
a.) Answer
2.
b.) Counterclaim
A: None. That is the last pleading. So, reply is considered as the
last pleading.
3.
Effect of failure to file a reply
4.
a.) Reply to answer
b.) Answer to counterclaim
Reply to answer to counterclaim
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?
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)
A: No. As a general rule, the failure to file a reply has no effect.
Section 10 says that if a party does not 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.
THIRD PARTY COMPLAINT is the procedure for bringing into a case
a third person who is not a party to the case.
Exceptions:
1)
2)
Where the answer is based on an actionable document
(Sec. 8 R 8); and
To set up affirmative defenses in the counterclaim
((Rosario vs. Martinez, GR No. L-4473, Sept. 30, 1952)
It is a procedural device whereby a “third party” who is neither a
party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court, by the defendant,
who acts as third-party plaintiff to enforce against such third-party
defendant a right for contribution, indemnity, subrogation or any
other relief, in respect of the plaintiff’s claim. The third-party
complaint is actually independent of and separate and distinct from
the plaintiff’s complaint. Were it not for this provision of the Rules,
it would have to be filed independently and separately from the
original complaint by the defendant against the third party.
Note: Only allegations of usury in a Complaint to recover usurious
interest are deemed admitted if not denied under oath. Hence, if
the allegation of usury is contained in an answer it is not necessary
for the plaintiff to file a reply thereto in order to deny that
allegation under oath. (Regalado, p. 146)
A reply should not be confused with the answer to a counterclaim
which is also filed by the plaintiff.
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The purpose of a third-party complaint is to enable a defending
party to obtain contribution, indemnity, subrogation or other relief
from a person not a party to the action.
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)
EXAMPLE: A plaintiff files a case against a defendant to collect a
loan when there are two solidary debtors and one of them is
compelled to pay everything so that defendant will drag into the
picture the co-debtor for contribution or indemnity. If the two of
them were sued as defendants, all one has to do is to file a crossclaim against his co-defendant. BUT since only one is sued, the
remedy is to avail of Section 11.
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.
Take note that filing a third-party complaint is not a matter of right.
THERE MUST BE LEAVE OF COURT, unlike counterclaim or
cross-claim, where you do not need any motion or leave of court.
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)
There is a close relationship between a cross-claim and a thirdparty complaint because a cross-claim must arise out of the subject
matter of the main action. A third-party complaint must be also
related to the main action. It cannot be a cause of action which has
no relation to the main action.
SUBROGATION
Subrogation - You step into the shoes of someone else. Your
obligation is transferred to me.
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.
EXAMPLE: Where a house 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)
BUT if the plaintiff files 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.
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS
CLAIM
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)
But if he wants everything to be resolved in the same case, what
kind of 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:
1.)
2.)
3.)
4.)
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...
Contribution;
Indemnity;
Subrogation; or
any other relief in respect to the opponent’s claim.
CONTRIBUTION
BAR QUESTION: Janis files a case against Nudj to recover an unpaid
loan. 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?
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 cosolidary 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.
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
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Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa
utang ni Andrew kay Nudj? Not in respect to his opponent’s claim.
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)
BAR QUESTION: How do you determine whether a 3rd-party
complaint is proper or improper? What are the tests to determine
its propriety?
3.
A: Case of
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.”
CAPAYAS vs. CFI – 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, or
although arising out of another or different
transaction, is connected with the plaintiff's claim.
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.
So obviously, Tato arrived at the conclusion
that si Philip and nakabangga. Tato filed a
third-party 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.
(A third-party complaint is proper if the thirdparty’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.
2.
Whether the third party defendant may assert any
defense which the third party plaintiff has or may
have against plaintiff’s claim.
Take note that there is a close similarity between a third-party
complaint and a cross-claim because as we have learned, a crossclaim must also be related to the same action.
Whether the third party defendant would be liable
to the original plaintiff or to the defendant for all
or part of the plaintiff's claim against the original
defendant. Although the third party defendant's
liability arises out of another transaction.
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.
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
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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: 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.
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 because 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.
BUT in the light of the ruling in the case of
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 culpacontractual?
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.
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.”
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 thirdparty complaints, etc.
Another interesting case which is to be compared with the
abovementioned case is the 1989 case of
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.”
SHEAFER vs. JUDGE OF RTC OF OLONGAPO – 167 SCRA 386
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?
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 P350,000. 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.
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: 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
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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.
Summons on third, fourth, etc. party defendant must be served for
the court to acquire jurisdiction over his person, since he is not an
original party.
A third-party complaint is not proper in an ction for declaratory
relief (Comm. of Customs vs. Cloribel, GR No. L - 21036, June 30,
1977)
Now, the same situation happened in another case. The case of
Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third-party complaint, regardless of the
amount involved as a third-party complaint is merely auxiliary to an
is a continuation of the main action (Rep. vs. Central Surety and
Insurance Co. GR No. L 27802, Oct. 26, 1968)
EASTERN 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?
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.
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.
Distinguished from a Third-Party Complaint
A third party complaint is proper when not one of the third-party
defendants therein is a party to the main action. If one or more of
the defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be brought in
under this section.
EXAMPLE:
A
B
A files a
complaint
against B
C
B files a 3rd
party
complaint
against C
D
C files a 4th
party
complaint
against D
E
D files a 5th
party
complaint
against E
The best example of Section 12 is the case of:
SAPUGAY vs. CA – 183 SCRA 464
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.
FACTS: Mobil Philippines filed a case against Sapugay, its
gasoline dealer. Sapugay filed an 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.
Rule on Venue and Jurisdiction Inapplicable
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.
Jurisdiction over the third-party complaint is but a continuation of
the main action and is a procedural device to avoid multiplicity of
suits. Because of its nature, the proscription on jurisdiction and
venue applicable to ordinary suits may not apply. (Eastern
Assurance vs. Cui, 105 SCRA 622 [1981])
Grounds for Denial of Third-Party Complaint
a.
b.
When allowance would delay resolution of the original
case or when the third-party defendant could not be
located; and
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
When extraneous matters to issue of possession would
unnecessarily clutter a case of forcible entry.(del Rosario
v. Jimenez 8 SCRA 549)
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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.
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).
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.”
In the case of:
SINGAPORE AIRLINES vs. CA – 243 SCRA 143 [1995]
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?
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
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.
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.”
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:
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.
A files a case against B
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.
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Rule 7
A: In the complaint, YES. They shall all be named. It is possible that
the title alone will reach 3 or more pages.
PARTS OF A PLEADING
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.
Sec. 1 – Caption. The caption sets forth the
name of the court. The title of the action, and
docket number if assigned.
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.
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.
Q: What are the instances where the law does not require the
name of the parties to be stated even in the complaint or pleading?
Their respective participation in the case shall
be indicated.
ILLUSTRATION:
CAPTION contains the following:
1)
2)
3)
the name of the court;
the title of the action and
the docket number if assigned.
Republic of the Philippines
11th Judicial Region
Regional Trial Court of Davao
Branch 12
Juan dela Cruz,
Plaintiff
TITLE
Civil Case #12345
-versus-
For: Annulment of Contract
Osama bin Laden
Defendant
COMPLAINT
BODY sets forth:
1)
2)
3)
4)
Plaintiff, through counsel respectfully alleges that:
1.
x x x x x x;
3.
xxxxxx
its designation;
the allegation of the party's claims and defenses;
the relief prayed for; and
2. x x x x x x;
the date of the pleading
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 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”.
A: These are the following:
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept
of permissive joinder of
parties.
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);
Now is it necessary that they
shall be named?
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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)
(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.
Variance between caption and allegations in the pleading
(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)
It is not the caption of the pleading but the allegations therein
which determine the nature of the action and the court shall grant
relief warranted by the allegations and proof even if no such relief
is prayed for (Solid Homes Inc. vs. CA, 271 SCRA 157; Banco Filipino
vs. CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a
complaint captioned as unlawful detainer is actually an action for
forcible entry where the allegations show that the possessor of the
land was deprived of the same by force, intimidation, strategy,
threat or stealth. Likewise, a complaint for unlawful detainer is
actually an action for collection of a sum of money where the
allegations of the complaint do not disclose that the plaintiff
demanded upon the defendant to vacate the property but merely
demanded to pay the rentals in arrears.
(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.”
In one case, while the complaint was denominated as one for
specific performance, the allegations of the complaint and the
relief prayed for actually and ultimately sought for the execution of
a deed of conveyance to effect a transfer of ownership of the
property in question. The action therefore, is a real action (Gochan
vs. Gochan, 372 SCRA 256). Also although the complaint was
denominated as one for reformation of the instrument, the
allegations of the complaint did not preclude the court from
passing upon the real issue of whether or not the transfer between
the parties was a sale or an equitable mortgage as the said issue
has been squarely raised in the complaint and had been the subject
of arguments and evidence of the parties. (Lorbes vs. CA 351 SCRA
716).
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.
If the petitioner filed before the SC a petition captioned “Petition
for Certiorari” based on Rule 65 but the allegations show that the
issues raised are pure questions of law, the cause of action is not
one based on Rule 65 which raises issues of jurisdiction, but on
Rule 45 which raises pure questions of law. The allegations of the
pleading determine the cause of action and not the title of the
pleading (De Castro vs. Fernandez, Jr. GR No. 155041, Feb. 14,
2007)
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. So in his Answer, the defendant 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.
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)
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?
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)
Plaintiff respectfully alleges: 1. that he is of
legal age x x x.
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FIRST CAUSE OF ACTION: In 1995, there was a
loan secured amounting to so much and
it is not paid until now;
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.
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.
So, you indicate your different causes of action. That is how you
prepare your complaint. On the other hand, the defendant will
answer:
Sec. 3. Signature and Address.- Every pleading
must be signed by the party or counsel
representing him, stating in either case his
address which should not be a post office
box.
ANSWER:
xxxxx
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
Signature and address – every pleading must be signed by the party
or the counsel representing him.
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
A signed pleading is one that is signed either by the party himself or
his counsel. Section 3, Rule 7 is clear on this matter. It requires that
a pleading must be signed by the party or counsel representing
him. Therefore, only the signature of either the party himself or his
counsel operates to validly convert a pleading from one that is
unsigned to one that is signed. (Republic vs. Kenrick Development
Corp. 351 SCRA 716)
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.
“It has been held that counsel’s authority and duty to sign a
pleading are personal to him.” He may not delegate it to just any
person because the signature of counsel constitutes an assurance
by him that:
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 deem just or
equitable.”
1.
2.
The relief or prayer, although part of the complaint, does not
constitute a part of the statement of the cause of action. It does
not also serve to limit or narrow the issues presented (UBS vs. CA
332 SCRA 534)
3.
he has read the pleading;
that to the best of his knowledge, information and belief,
there is a good ground to support it; and
that it is not interposed for delay.
Under the Rules of Court, it is counsel alone, by affixing his
signature, who can certify to these matters.
It is the material allegations of the complaint, not the legal
consequences made therein or the prayer that determines the
relief to which the plaintiff is entitled. (Banco Filipino vs. CA 332
SCRA 241).
“The preparation and signing of a pleading constitute legal work
involving practice of law which is reserved exclusively for the
members of the legal profession. Accordingly however, counsel
may delegate the signing of a pleading to another lawyer but
cannot do so in favor of one who is not. In so ruling the Court cites
The Code of Professional Responsibility, the pertinent provision on
which provides:
It is important to remember that the court may grant a relief not
prayed for as long as the relief is warranted by the allegations of
the complaint and the proof. (Lorbes vs. CA).
Q: Is the prayer or relief part of the main action?
Rule 9.01 – A lawyer shall not delegate to any unqualified person
the performance of any task which by law may only be performed
by a member of the Bar in good standing.
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.
“A signature by agents of a lawyer amounts to signing by
unqualified persons, something the law strongly proscribes.
Therefore, the blanket authority entrusted to just anyone is void.
Any act taken pursuant to that authority is likewise void. Hence,
there is no way it could be cured or ratified by counsel.” (Republic
vs. Kenrick Development Corp.)
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
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Not Post Office Address, why?
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.
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.
However, if the lawyer files a pleading which is UNSIGNED
DELIBERATELY, 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..
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
“The signature of counsel constitutes a
certification 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.”
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 perhaps to prevent delays.
Q: What do you mean by this?
Q: When a lawyer signs a pleading, what is he certifying?
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.
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 an IMPLIED CERTIFICATION IN A
PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already
asked in the bar once.
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.
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.
Disciplinary action on counsel in the following cases:
Section 3, last paragraph:
1.
2.
3.
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. (5a)
4.
deliberately filing an unsigned pleading;
deliberately signing a pleading in violation of the Rules;
alleging scandalous or indecent matter in the pleading;
or
failing to promptly report a change of his/her address.
Signature of a disjoined party
The Court rules that the absence of the signature of the person
misjoined as a party-plaintiff in either the verifification page or
certification against forum shopping is not a ground for the
dismissal of the action. There is no judicial precedent affirming or
rejecting such a view, but we are comfortable with making such a
pronouncement. A disjoined party plaintiff has no business
participating in the case as a plaintiff in the first place, and it would
make little sense to require the disjoined party in complying with
all the requirements expected of plaintiffs (Chua v. Torres GR No.
151900, Aug 30, 2005).
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.
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VERIFICATION
a)
b)
Sec. 4. Verification - Except when otherwise
specifically required by law or rule, pleadings
need not be under oath, verified or
accompanied by affidavit. (5)
the affiant has read the pleading, and
that the allegations therein are true and correct of his
personal knowledge or based on authentic records (Sec.
4 as amended by A.M. No. 00-2-10, May 1, 2000)
Significance of Verification
The purpose of verification is to insure good faith in the averments
of a pleading or are true and correct, not merely speculative.
(Sarmiento vs. Zaratan GR No. 167471, February 5, 2007).
A pleading is verified by an affidavit that the
affiant has read the pleading and that the
allegations therein are true and correct of his
knowledge and belief.
Effect of lack of Verification
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)
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)
The absence of a verification may be corrected by requiring an
oath. The rule is in keeping with the principle that rules of
procedure are established to secure substantial justice and that
technical requirements may be dispensed with in meritorious
cases. (Pampanga Sugar Development Company, Inc. vs. NLRC 272
SCRA 737) The court may order the correction of the pleading or
act on an unverified pleading if the attending circumstances are
such that strict compliance would not fully serve substantial justice,
which after all, is the basic aim for the rules of procedure. (Robert
Development Corp. vs. Quitain 315 SCRA 150; Joson vs. Torres 290
SCRA 279)
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:
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.
I am the plaintiff in the above entitled case.
I caused the preparation of this complaint;
I read the allegations therein;
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.
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 Cebu,
Philippines.
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.
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 Cebu, 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.
Litigants not required to read the very same document to be filed
in court
Generally, a pleading is not required to be verified unless required
by law or by the Rules of Court. Verification, when required, is
intended to secure an assurance that the allegations of a pleading
are true and correct; are not speculative or merely imagined; and
have been made in good faith. To achieve this purpose, the
verification of a pleading is made through an affidavit or sworn
statement confirming that the affiant has read the pleading whose
How is a Pleading Verified
A pleading is verified by an affidavit. This affidavit declares that:
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allegations are true and correct of the affiant's personal knowledge
or based on authentic records.
with it? Technically, none. But if it is required to be verified and you
omit the verification, it is formally defective.
However, the Rules do not require the litigants to read the very
same document that is to be filed before the courts; what the Rules
require is for a party to read the contents of a pleading without any
specific requirement on the form or manner in which the reading is
to be done. That a client may read the contents of a pleading
without seeing the same pleading to be actually filed with the court
is, in these days of e-mails and other technological advances in
communication not an explanation that is hard to believe. The
variance between the dates of the Petition and the Verification
does not necessarily lead to the conclusion that no verification was
made, or that the verification was false. (Sps. Valmonte v. Alcala,
GR No. 168667, July 23, 2008)
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 commenced
any action or filed any claim involving the
same issues in any court, tribunal or quasijudicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein;
BAR QUESTION: Name as many pleadings as you can which must
be verified.
b) if there is such other pending action or
claim, a complete statement of the status
thereof; and
A: The following:
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.
4) Statement of Claim for Small Claims cases as well as the
response thereto (Secs. 5 & 11, Procedure for Small
Claims Cases)
5) Complaint for Injunction (Sec. 4 R 58)
6) Application for Appointment of Receiver (Sec. 1 R 59)
7) Application for Support Pendente Lite (Sec. 1 R 69)
8) Petition for Forcible Entry or Unlawful Detainer, the
answers thereto, and the answers to any compulsory
counterclaim and cross-claim pleaded in the answer (Sec.
4 R 70)
9) Petition for Indirect Contempt (Sec. 4 R 71)
10) Petition for Relief from Judgment or Order (Sec. 3 R 38)
11) Petition for Review from the RTC to the SC (Sec. 2(c) R
41)
12) Petition for Review from RTC to SC (Sec. 1 R 42)
13) Petition for Review from CTA and other quasi-judicial
agencies to the CA (Sec. 5 R 43)
14) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R
45)
15) Petition for Appointment of a Guardian (Sec. 2 R 93)
16) Petition for Leave filed by Guardian to Sell or Encumber
Property of an Estate (Sec. 1 R 95)
17) Petition for Declaration of Competency of a Ward (Sec. 1
R 97)
18) Petition for Habeas Corpus (Sec. 3 R 102)
19) Petition for Change of Name (Sec. 2 R 103)
20) Petition for Voluntary Judicial Dissolution of a
Corporation (Sec. 1 R 105)
21) Petition for Cancellation or Correction of Entries in the
Civil Registrar (Sec. 1 R 108)
Q: Now, on the other hand, suppose a pleading does not require
verification but the lawyer had it verified. What is the effect?
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)
The certification is mandatory under Sec. 5 of Rule 7 but not
jurisdictional. (Robert Development Corp. vs. Quitain)
This rule applies as well to special civil actions since a special civil
action is governed by the rules for ordinary civil actions, subject to
the specific rules prescribed for a special civil action. Such specific
rule appears under Rule 46, Sec. 3 which requires that every
petition for certiorari to be accompanied by a sworn certification of
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
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non-forum shopping. (Wacnang vs. Comelec, GR No. 178024 Oct.
17, 2008)
substantially the same reliefs, in the process creating possibility of
conflicting decisions being rendered by the different courts and/or
administrative agencies upon the same issues (Lim vs. Vianzon GR
137187, August 3, 2006).
Meaning of Forum Shopping
There is forum shopping when, as a result of an adverse opinion in
one forum, a party seeks a favorable opinion, other than by appeal
or certiorari, in another. There can also be forum shopping when a
party institutes two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to rule on
the same or related causes and/or to grant the same or
substantially the same reliefs on the same supposition that one or
the other court would make a favorable disposition or increase a
party’s chances of obtaining a favorable decision or action.
(Huibonhoa vs. Concepcion GR 153785, August 3, 2006; Heirs of
Cesar Marasigan vs. Marasigan, GR 156078 March 14, 2008)
Who executes the certification?
It is the plaintiff or principal party who executes the certification
under oath. (Sec. 5). The certification must be executed by the
party, not the attorney (Damasco vs. NLRC 346 SCRA 714).
It is the petitioner and not the counsel who is in the best position
to know whether he or it actually filed or caused the filing of a
petition. A Certification signed by counsel is a defective
certification and is a valid cause for dismissal (Far Eastern Shipping
Company vs. CA 297 SCRA 30). This is the general and prevailing
rule.
It is an act of a party against whom an adverse judgment has been
rendered in one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or the special civil
action of certiorari, or the institution of two or more actions or
proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition. (Sps.
Carpio vs. Rural Bank of Sto. Tomas Batangas GR 153171 May 4,
2006)
Liberal interpretation of the rule
It has also been held that the rules on forum shopping, which were
precisely designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such
absolute literalness as to subvert its own ultimate and legitimate
objective which is the goal of all rules of procedure – that is, to
achieve substantial justice as expeditiously as possible (Great
Southern Maritime Services Corp. vs. Acuna 452 SCRA 422). Hence,
the rule is subject to the power of the SC to suspend procedural
rules and to lay down exceptions to the same.
Rationale against forum shopping
The rationale against forum shopping is that a party should not be
allowed to pursue simultaneous remedies in two different fora.
Filing multiple petitions or complaints constitutes abuse of court
processes, which tends to degrade the administration of justice,
wreaks havoc upon orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the court. Thus, the
rule proscribing forum shopping seeks to promote candor and
transparency before the courts to promote the orderly
administration of justice, prevent undue inconvenience upon the
other party, and save the precious time of the courts. It also aims
to prevent the embarrassing situation of two or more courts or
agencies rendering conflicting resolutions or decisions upon the
same issue (Huibonhoa vs. Concepcion, supra).
Examples:

While a petition for certiorari is flawed where the certification
of non-forum shopping was signed only by counsel and not by
the party, this procedural lapse was overlooked by the Court
in the interest of justice (Sy Chin vs. CA 345 SCRA 673). In
another case, the fact that the parties were abroad at a time
when the petition was filed, was considered a reasonable
cause to exempt the parties from compliance with the
requirement that they personally execute the certification
against forum shopping (Hamilton vs. Levy 344 SCRA 821). In
De Guia vs. De Guia 356 SCRA 287, the SC went to the extent
of invoking its power to suspend the Rules by disregarding the
absence of the certification against forum shopping in the
interest of justice.
To determine whether a party violated the rule against forum
shopping, the most important question to ask is whether the
elements of litis pendentia are present or whether a final judgment
in one case will result to res judicata in another. Otherwise stated,
to determine forum shopping, the test is to see whether in the two
or more cases pending, there is (a) identity of parties, (b) identity of
rights or causes of action, and (c) identity of reliefs sought
(Huibonhoa vs. Concepcion)

What is pivotal in determining whether forum shopping exists or
not is the vexation caused the courts and parties-litigants by a
party who asks different courts and/or administrative agencies to
rule on the same or related causes and/or grant the same or

In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that
where the petitioners were sued jointly as “Mr. and Mrs.”
over a property in which they were alleged to have common
interest, the signing of the certification by one of the
petitioners was held to be a substantial compliance of the
rule. In a subsequent ruling in the case of Docena vs. Lapesura
(355 SCRA 658), where only the husband signed the certificate
against forum shopping in a petition involving the conjugal
residence of the spouses, the SC considered the certification
as having substantially complied with the requirements.
In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a similar
ruling was made where the Court held that there was
substantial compliance with the Rules where only one
petitioner signed the certification against forum shopping in
behalf of all the other petitioners being all relatives and co-
How to determine existence of forum shopping
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owners of the properties in dispute, and who shared a
common interest in them, had a common defense in the
complaint for partition, filed the petition collectively, and
raised only one argument to defend their rights over the
properties in question.


and has personal knowledge of the facts required to be disclosed in
the certification against forum shopping, the certification may be
signed by the authorized lawyer (National Steel Corporation vs. CA
388 SCRA 85).
Authority to sign Certification of Non Forum Shopping
In Bases Conversion Development Authority GR No. 144062,
November 2, 2006, while only one petitioner signed the
verification and certification, it was held that such fact is not
fatal to the petition. The Court ruled that the signature of a
principal party satisfies the requirement because under the
Rules it is clear that the certification may be signed by a
principal party.
A board resolution purporting to authorize a person to sign
documents on behalf of the corporation must explicitly vest such
authority. The signing of verifications and certifications against
forum shopping is not integral to the act of filing; this may not be
deemed as necessarily included in an authorization merely to file
cases. (MCWD vs. Margarita A. Adala, GR No. 168914, July 4, 2007)
In HLC Construction and Development Corp. vs. Emily Homes
Subdivision Homeowners Association 411 SCRA 504, the Court
ruled that the signature of only one petitioner substantially
complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or
defense.
Pleadings requiring a certification
The certification against forum shopping is mandatory in filing a
complaint and other initiatory pleadings asserting a claim (Sec.5)
This initiatory pleadings include not only the 1. original complaint
but also 2.permissive counterclaim, 3. cross-claim, 4. third (fourth)party complaint, 5. complaint in intervention, 6. petition or any
application in which a party asserts a claim for relief. The rule does
not require a certification against forum shopping for a compulsory
counterclaim because it cannot be the subject of a separate and
independent adjudication. It is therefore, not an initiatory pleading
(UST vs. Surla, 294 SCRA 382)
Lack of certification not cured by subsequent submission
In appeal by certiorari to the Supreme Court, the lack of
certification is generally not curable by the submission thereof
after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules
provides that failure of the petitioner to submit the required
documents that should accompany the petition, including the
certification, required in Sec. 4, Rule 45, shall be sufficient ground
for the dismissal thereof.
It bears stressing that the Rule distinctly provides that the required
certification against forum shopping is intended to cover an
initiatory pleading, meaning an incipient application of a party
asserting a claim for relief. The answer with a counterclaim is a
responsive pleading, filed merely to counter petitioner’s complaint
that initiates the civil action and is a claim for relief that is derived
only from, or is necessarily connected with, the main action or
complaint. It is not an initiatory pleading (Sps. Carpio vs. Rural Bank
of Sto. Tomas Batangas, supra)
Exceptions
In certain exceptional circumstances, however, the Court has
allowed the belated filing of the certification. In all these cases,
there were special circumstances or compelling reasons that
justified the relaxation of the rule.
Lack of authority to sign certification
UST HOSPITAL vs. SURLA - 294 SCRA 382 [Aug. 17, 1998]
The same liberal construction applies to certifications against
forum shopping signed by the person on behalf of a corporation
which are unaccompanied by proof that said signatory is
authorized to file a petition on behalf of the corporation. A liberal
interpretation is given to the rule more so where the petitioner did
submit a certification against forum shopping, but he failed only to
show proof that the signatory was authorized to do so. In several
cases, (Shipside Incorporated vs. CA 404 SCRA 981; Ateneo de Naga
University vs. Manalo 458 SCRA 325, etc) the Court permitted the
subsequent submission of proof of authority to sign the
certification against forum shopping.
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.”
Signing the Certification when the plaintiff is a juridical person
A juridical entity, unlike a natural person, can only perform physical
acts through properly delegated individuals. The certification
against forum shopping where the plaintiff or a principal party is a
juridical entity, like a corporation, may be executed by properly
authorized persons. This person may be the lawyer of the
corporation. As long as he is duly authorized by the corporation
Effect of non-compliance
The failure to comply with the required certification is “not
curable by a mere amendment” and shall be a cause for the
dismissal of the action (Sec. 5).
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The dismissal is not to be done by the court motu proprio as
the rule requires that it shall be done upon motion and after
hearing (Sec. 5)
Failure to submit certification against forum shopping and
forum shopping are two separate grounds for dismissal-The failure to submit a certification against forum
shopping is a ground for dismissal, separate and
distinct from forum shopping as a ground for
dismissal. A complaint may be dismissed for forum
shopping even if there is a certification attached
and conversely, a complaint may be dismissed for
lack of the required certification even if the party
has not committed forum shopping. Compliance
with the certification against forum shopping is
separate from, and independent of, the avoidance
of forum shopping itself. (Juaban vs. Espina 548
SCRA 588, March 14, 2008).
The dismissal is, as a rule, “without prejudice” unless the
order provides otherwise (Sec. 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 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.
No appeal from an order of dismissal
If a complaint is dismissed for failure to comply with required
certification, the plaintiff cannot appeal from such order. This
is because an order dismissing an action without prejudice is
not appealable. The remedy provided for under Sec. 1 of Rule
41 is to avail of the appropriate special civil action under Rule
65 (Sec. 1[g], Rule 41 as amended, Rules of Court.
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.” In other words, the
complaint will be dismissed but you can still re-file the case with
the inclusion of the certification against forum shopping.
Effect of willful and deliberate forum shopping –
Pursuant to Sec. 5, it will result to a summary dismissal, that
is, without need of a motion to dismiss and hearing and the
dismissal is with 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 don’t agree
because the unless otherwise provided appears to qualify the
dismissal without prejudice. In other words, the court can order the
dismissal with prejudice.)
Effect of submission of a false certification
It shall constitute:
1)
2)
indirect contempt
without prejudice to the corresponding administrative
and criminal sanctions (Sec.5)
Effect of non-compliance with the undertakings
It has the same effect as the submission of a false certification
(Sec.5), hence shall constitute indirect contempt without
prejudice to the corresponding administrative and criminal
sanctions (Sec. 5).
I think this provision that mere amendment does not cure
automatically the missing certification for non-forum shopping was
taken by the SC from its ruling in the 1995 case of
OTHER REQUIREMENTS
KAVINTA vs. CASTILLO, JR. – 249 SCRA 604
All pleadings, motions and papers filed in court by counsel
shall bear in addition to counsel’s current Professional Tax
Receipt Number (PTR), counsel’s current IBP official receipt
number indicating its date of issue. Pleadings motions and
papers which do not comply with this requirement may not be
acted upon by the court, without prejudice to whatever
disciplinary action the court may take against the erring
counsel who shall likewise be required to comply with the
requirement within 5 days from notice. Failure to comply with
such requirement shall be a ground for further disciplinary
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.
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sanction and for contempt of court (Circular No. 10, July 24,
1985; Bar Matter No. 287, September 26, 2000.
On November 12, 2002, the SC granted the request of the
Board of Governors of the IBP and the Sangguniang
Panlalawigan of Ilocos Norte to require all lawyers to indicate
their Roll of Attorneys Number in all papers and pleadings
filed in judicial and quasi-judicial bodies in addition to the
previously required current PTR and IBP OR. The requirement
is meant to protect the public by making it easier to detect
impostors who represent themselves as members of the Bar.
Non-compliance has the same effect as failure to indicate
counsel’s IBP Receipt Number. This requirement is directed
only to lawyers and is not to be construed as precluding a
party who is not a lawyer from signing a pleading himself (Bar
Matter No. 1132, April 1, 2003)
All practicing lawyers are required to indicate in all pleadings
filed before the courts or quasi-judicial bodies, the number
and date of issue of their MCLE Certificate of Compliance or
Certificate of Exemption. Failure to disclose the information
would cause the dismissal of the case and the expunction of
the pleading from the records (Bar Matter No. 1922 En Banc
Resolution, June 3, 2008). Per En Banc Resolution of the Supre
Court dated September 2, 2008, the effectivity date of the
implementation was moved from August 25, 2008 to January
1, 2009.
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Rule 8
defense become incomplete, a certain element of cause of action
disappears then it must be a statement of ultimate fact.
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Q: What are the essential elements of a cause of action?
A: The following:
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.
1.)
2.)
3.)
4.)
Statement of the right;
Statement of the obligation;
Statement of the violation; and
Statement of damage.
You analyze a complaint from the first to the last paragraph, you
find out whether the four are present.
If a defense relied on is based on law, the
pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated.
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.
Evidentiary Facts
Pleadings must only state the ultimate facts where one relies on his
defense or complaint. You must omit the statement of mere
evidentiary facts.
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.
The ultimate facts refer to the essential facts of the claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action insufficient (Ceroferr Realty Corporation vs.
CA 376 SCRA 144). The ultimate facts are the important and
substantial facts which form the basis of the primary right of the
plaintiff and which make up the wrongful act or omission of the
defendant. The ultimate facts do not refer to the details of
probative matter or to the particulars of evidence by which the
material elements are to be established. They are the principal,
determinate, constitutive facts, upon the existence of which, the
entire cause of action rests. (Tantuico, Jr. vs. Republic, 204 SCRA
428)
Evidentiary facts refer to those which are necessary to prove the
ultimate fact or which furnish evidence of the existence of some
other facts.
In the law on Evidence, ultimate facts are called factum
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.
Distinguish ultimate facts from evidentiary facts
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?
A: Ultimate facts are those which are essential to one’s cause of
action or defense.
Suppose the lawyer wants to impress the court that the statement
is true, the pleading describing continuous possession for the past
30 years from 1967 to 1997. And therefore, the lawyer will now
prepare the complaint in this manner:
Ultimate facts refer to those which directly form the basis of the
right sought to be enforced or the defense relied upon. If the
ultimate facts are not alleged, the cause of action will be
insufficient.
Plaintiff has been in possession of the said
property continuously, openly for the past 30
years from 1967 to 1997 as may be borne out by
the following:
Q: How do you determine whether a fact is essential to your cause
of action or defense?
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
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
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planted guava. He will recite everything from 1967
to 1997.
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.
The form is wrong because you are stating evidentiary facts.
PRINCIPLE: Only ultimate facts should be alleged and not the
evidentiary facts.
So, what should be the correct pattern?
Q: Apart from evidentiary facts, what are the other matters that
should not be stated in the pleading?
Plaintiff has been in continuous possession of the
property for 30 years from 1967 up to the present.
A: The following:
That is the ultimate fact.
1.)
2.)
3.)
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!”
Facts which are presumed by law;
Conclusions of fact or law;
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.
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.
Example: Negligence in culpa contractual
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?
Another Example:
In a collection case you can just allege:
“The defendant borrowed money and then it fell
due. I made demands for him to pay, but despite
repeated demands he refused to pay.”
A: NO. 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.
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…” Those are evidentiary facts which can be brought
forward during the trial.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no preexisting 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.
Under Section 1, you state the ultimate facts on which you base
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.
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.
How do you present the facts? In a methodical and logical form. It
is a matter of writing style. Every person has his style of writing.
Corollarily, 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. Each presentation must be methodical and logical.
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.
What is the first test whether you style is methodical or logical?
The best exercise is your own answer in examinations. In a
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
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ultimate fact as distinguished from conclusion is explained in the
old case of
insufficient by the insufficiency of one or
more of the alternative statements. (2)
MATHAY vs. CONSOLIDATED BANK – 58 SCRA 559
The provision recognizes that the liability of the defendant may
possibly be based on either one of two possible causes of action.
The plaintiff, may for example, believe that the liability of the
carrier may be based either on a breach of contract of carriage or
on a quasi-delict, but he may not be certain which of the causes of
action would squarely fit the set of facts alleged in the complaint,
although he is certain that he is entitled to relief. He may therefore,
state his causes of action in the alternative. This provision in effect,
also relieves a party from being compelled to choose only one
cause of action.
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.
Q: What happens if one cause of action is insufficient? Will it cause
the dismissal of the complaint?
For EXAMPLE:
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.
The complaint alleges that the defendants are holding the
plaintiff’s property in Trust for the plaintiff 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.
EXAMPLE:
I read a case about a 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.
So a 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.”
Sometimes a defendant when he files his answer, it is purely based
on law. He must cite the legal provision in his answer and explain
WHY it is applicable to him.
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 injured. What is the basis against the carrier? Is
there a contract or none? There is because one foot
was already on it but others say there was no contract
yet. 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.
Test to Distinguish Conclusions of Law from Statement of Facts
If from the facts in evidence the result can be reached by the
process of natural reasoning adopted in the investigation of truth,
it becomes an ultimate fact to be found as such.
If on the other hand resort must be had to artificial process of the
law in order to reach a final determination, the result is a
Conclusion of Law (herrera Vol. I)
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.
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
Pleading alternative causes of action normally leads to inconsistent
claims. For instance, the elements of a cause of action based on a
contractual theory are inconsistent with those of a cause of action
based on a quasi-delict. As previously discussed, a suit based on a
breach of contract of carriage for example, does not require an
allegation and proof of negligence because it is not an element of a
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breach of contract suit (Calalas vs. CA 332 SCRA356; FGU Insurance
Corp. vs. GP Sarmiento Trucking Corp. 386 SCRA 312). On the other
hand, negligence as a rule, is an essential element of a suit based
on a quasi-delict (Art. 2176, Civil Code).
choose one but it turned out that a different defense would be
correct. You cannot use that defense anymore. There is a prejudice
because during the trial, I will choose among them with the
evidence I have.
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.
Under Sec. 2, this situation is permissible as long as the allegations
pleaded within a particular cause of action are consistent with the
cause of action relied upon as an alternative. Thus, if the
alternative cause of action is a breach of contract, the allegations
therein must support the facts constituting the breach of the
contract.
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.
Alternative Defenses
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?
Take note that you have to correlate this topic on the related
provisions we have already taken up:
A: NO. The law allows the defendant to cite the 3 possible
defenses alternatively. Meaning, each is my defense or not.
For EXAMPLE:
1.)
No matter if your defenses are inconsistent Section 2, Rule 8 allows
the defendant to plead his defenses hypothetically or 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.
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
For EXAMPLE:
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.
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.)
b.)
c.)
Remember these 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.
“That is not true. I never borrowed any
money from the plaintiff.” That is a
defense of denial.
“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.
“Assuming that the money I received
from the plaintiff was really a loan.
However, such amount was completely
paid.” Defense of payment.
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?
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”.
A: It depends on what matters you are alleging in your complaint –
whether it is a condition precedent, capacity to sue or be sued,
fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
The rule allowing alternative defenses is consistent with the
omnibus motion rule which requires that all motions attacking a
pleading shall include all objections then available, and all
objections not so included shall be deemed waived (Sec. 8, Rule 15)
Sec. 3. Conditions Precedent. - In any
pleading, a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (3)
However, during that trial, you have to choose among them which
you think is true based on evidence. The problem is that you
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Common usage refers to conditions precedent as matters which
must be complied with before a cause of action arises. When a
claim is subject to a condition precedent, the compliance of the
same must be alleged in the pleading.
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. (4)
Remember, that 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.
When you file a case against somebody you must have capacity to
sue and defendant must have capacity to be sued.
Q: When you allege compliance with the conditions precedent, is it
necessary for you to be specific what are those conditions
precedent?
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.
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.
Examples of conditions precedent:
(a)
A tender of payment is required before making a
consignation (Art. 1256 Civil Code);
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.”
(b) Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action (Lopez
vs. City of Manila, 303 SCRA 448; Dy vs. CA 304 SCRA
331);
Q: How should it be done?
Prior resort to barangay conciliation proceedings is
necessary in certain cases (Book III, Title I, Chapter 7,
Local Government Code of 1991);
A: “I am the court’s appointed guardian of the plaintiff minor
having been appointed guardian by the court in this case based on
an order.” You have to emphasize that the court appointed you.
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the case
must be dismissed (Art. 151 Family Code);
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.
(c)
(e)
Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse to judicial remedies.
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.
The failure to comply with a condition precedent is an independent
ground for a motion to dismiss: that a condition precedent for filing
the claim has not been complied with (Sec. 1[j], Rule 16)
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.
“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)
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
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
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and I must state the reason or basis of such denial – why you are
not of legal age, why you are not a corporation.
Sometimes a party invokes a judgment of a court or cite a previous
case like res adjudicata to dismiss a case.
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.
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 say, “There was a previous judgment.” Is this sufficient?
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.
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)
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.
Fraud and mistake
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.
SUMMARY:
Q: What averment or allegations in pleadings may be done
GENERALLY?
Q: Is this statement sufficient?
A: The following:
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.
1.)
2.)
3.)
4.)
Malice, Intent, knowledge or conditions of the mind
Rule 8, Section 3– Conditions precedent;
Rule 8, Section 5, 2nd sentence – Conditions of the
mind;
Rule 8, Section 6 – Judgment;
Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?
Q: In the second sentence, why is it that malice, intent, etc. may be
averred generally?
A: The following:
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. This is borne out of human
experience.
1.)
2.)
3.)
Rule 8, Section 4, first sentence – Capacity to sue
and be sued;
Rule 8, Section 4, 2nd sentence – Legal existence of
any party to sue or be sued;
Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
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. 7. Action or defense based on document.
Whenever an action or defense is based upon
a written instrument or document, 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 said
copy may with like effect be set forth in the
pleading. (7)
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)
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Not every document that is needed in trial is actionable document.
Q: Using the above promissory note, how should the pleading be
worded?
Q: What is an actionable document?
A: Two ways of pleading of 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.
1.)
So a promissory note to collect an unpaid loan is not only an
evidence of your 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.
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.
2.
But in a collection case, if aside from promissory note I wrote you
several letters of demand to pay, such letters, while they are
relevant to the collection case, do not serve as the foundation of
your cause of action, although they are also important.
3.
Q: What is the purpose of the distinction between actionable and
non-actionable document?
Plaintiff B is xxx of legal age xxx;
Defendant A is xxxgayxxxx;
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;
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.
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 know how
to contest the genuineness of the document.
2.)
Said copy may with like effect be set forth in the
pleading. Document is quoted verbatim.
Q: And how do you plead an actionable document under Section 7?
EXAMPLE:
A: There are two (2) options:
1.)
2.)
COMPLAINT
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; or
The copy of the document may with like effect be
quoted in the pleading, in which case, there is no
need to attach the copy.
1.
2.
Plaintiff B is xxx of legal age xxx;
Defendant A is xxxxxxx;
On Dec. 31, 1997 def. A secured a
loan from plaintiff B which is
covered by a promissory note
worded as follows:
In the first one, there is no need to copy it. Just mention the
substance or features of the promissory note. In the second case,
the entire document must be quoted in the pleading.
PROMISSORY NOTE:
December 31, 1997
EXAMPLE:
For value received, I promise to pay “B” P1 million not later
than one year from date with 2 percent per annum.
PROMISSORY NOTE:
December 31, 1997
Signed: “A”
For value received, I promise to pay “B” P1
million not later than one year from date
with 2 percent per annum.
3.
Signed: “A”
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.
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Q: Suppose in the first way, the promissory note was not attached.
What will happen?
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: 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,
under oath, specifically denies them, and sets
forth what he claims to be the facts; but the
requirement of an oath does not apply when
the adverse party does not appear to be a
party to the instrument or when compliance
with an order for an inspection of the original
instrument is refused. (8a)
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.
Q: Does every pleading have to be under oath?
4.)
The document was delivered; and
A: GENERAL RULE: NO.
5.)
The formal requisites of law, such as seal,
acknowledgement (notarization) or revenue stamp
which it lacks, are waived by it.
EXCEPTION: Except when the law requires it. Example: Section 8,
Rule 8.
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.
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 be VERIFIED AND UNDER OATH.
Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
document?
To contest:
A: The following:
(a)
You must specifically deny the genuineness and due
execution of the document under oath; and
(b) You set forth what you claim to be the facts.
1.)
If the denial is not verified and under oath, the genuineness and
due execution of the promissory note is deemed admitted.
2.)
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?
3.)
4.)
5.)
6.)
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;
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The signature appearing in the document is a
forgery;
In case it was signed by an agent in behalf of the
corporation or partnership, or a principal, the
signature was unauthorized;
The corporation was not authorized under its
charter to sign the instrument;
The party charged signed it in some other capacity
than that alleged in the pleading; and
It was never delivered. (Hibberd vs. Rhode, supra)
The document was not in words and figures as set
out in the pleadings (Imperial Textile Mills vs. CA
183 SCRA 584)
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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?
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,
though not under oath, is valid?
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.
A: Section 8 says, the requirement of an oath does not apply:
1.)
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. 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.
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.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
9.)
10.)
11.)
12.)
13.)
14.)
15.)
16.)
payment;
want or illegality of consideration;
fraud;
mistake;
compromise;
statute of limitation;
estoppel;
duress;
minority; and
imbecility
usury
statute of frauds
prescription
release
waiver
former discharge in bankruptcy
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.
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.
A: YES. In the following cases, the implied admission is deemed
waived:
2.)
2.)
REPLY; GENERAL RULE: OPTIONAL;
Q: May the benefit of the admission of genuineness and due
execution of an actionable document be waived? If so, in what
instances?
1.)
When the adverse party does not appear to be a
party to the instrument;
Q: What should the plaintiff do?
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);
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?
Where the pleader fails to object to evidence
controverting the due execution. (Legarda Koh vs.
Ongsiaco, 36 Phil. 185)
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.
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.
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?
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A: When the defendant anchors his defense on an actionable
document and plaintiff will deny the genuineness and due
execution of such document.
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
SPECIFIC DENIAL
Meaning, you deny the allegation in the complaint but you must
state the basis of your denial – that it 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.
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
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 known as GENERAL DENIAL and it will have the effect of
automatically admitting the allegations in the complaint.
In an answer, defenses may either be negative or affirmative.
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?
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.
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.
Q: How is a specific denial done?
A: Rule 8, 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.
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)
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.
Purpose of specific denial
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
The purpose is to make the defendant disclose the
matters alleged in the complaint which he succinctly
intends to disprove at the trial, together with the matter
which he relied upon to support the denial. The parties
are compelled to lay their cards on the table (Aquintey
vs. Tibong, GR No. 166704, December 20, 2006)
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?
Q: So what are the modes of specific denial?
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.
A: Under Section 10, there are three (3) MODES OF SPECIFIC
DENIAL:
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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.
existence of the loan that is denied? Is it the amount? The date?
The place?
The effect of this kind of denial is an admission.
When a specific denial must be coupled with an oath:
(a) A denial of an actionable document (Sec. 8); and
(b) A denial of allegations of usury in a complaint to recover
usurious interest (Sec. 11)
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).
The allegations of usury which requires a specific denial under
oath are:
(a)
Allegations of usury in a complaint (not allegations of
usury in the answer), and
(b) The complaint is filed to recover usurious interests (Sec.
11, R 8)
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.”
Matters not deemed admitted by the failure to make a specific
denial:
a)
b)
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 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.
c)
The amount of unliquidated damages (Sec.11);
Conclusions in a pleading which do not have to be
denied at all because only ultimate facts need be alleged
in a pleading (Sec. 1 R 8);
Non-material averments or allegations are not deemed
admitted because only material allegations have to be
denied. (Sec. 11)
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)
Negative Pregnant
A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
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)
In a pleading, it is a negative implying also an affirmative and which
although is stated in a negative form really admits the allegations
to which it relates.
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.
Example:
A complaint alleges:
“Plaintiff extended a loan to Defendant in the amount of
P500,000.00 on July 27, 2006 in Cebu City.”
GENERAL RULE: Material averment in a complaint shall be deemed
admitted when not specifically denied.
The defendant in his Answer states:
EXCEPTION: Instances when averments in the complaint are not
deemed admitted even when not specifically denied:
“Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000.00 on July 27, 2006 in Cebu
City.”
1.)
2.)
The answer is a mere repetition of the allegations made in the
complaint. The answer is vague as to what it really denies. Is it the
3.)
145
Amount of unliquidated damages;
Immaterial averments (Worcester vs. Lorenzana, 56
O.G. 7932, Dec. 26, 1960)
Evidentiary matters; because a party is only obliged
to aver ultimate facts; (Agaton vs. Perez, L19548, Dec. 22, 1966)
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4.)
Conclusions of facts or law.
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:
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.
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 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.
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?
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.
A: A motion to strike may still be filed by the defendant within 20
days after the reply.
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
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Rule 9
These defenses may be raised at any stage of the proceedings even
for the first time on appeal EXCEPT that lack of jurisdiction over the
subject matter may be barred by laches (Tijam vs. Sibonghanoy GR
No. L-21450, April 15, 1968).
EFFECT OF FAILURE TO PLEAD
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)
Now, the traditional rule to remember notwithstanding the
SIBONGHANOY 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 an 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.
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.
A pending action to annul a mortgage is not a bar to an action for
foreclosure of the same mortgage for the reason that, although the
parties are or may be the same, the rights asserted and the relief
prayed for in the two actions are dissimilar.
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, 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.
A plea of the pendency of a prior action (litis pendencia) is not
available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
would be conclusive between the parties and could be pleaded in
bar of the second action. The rule is applicable, between the same
parties, only when the judgment to be rendered in the action first
instituted will be such that, regardless of what party is successful, it
will amount to res judicator against the second action (Hongkong
Shanghai Bank v. Aldecoa and Co., GR No. 8437, March 23, 1915).
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.
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.
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?
PRESCRIPTION is not found in the old rule but is taken from
decided cases. Among which are the cases of
A: Under Section 1, Rule 9, the following:
1.)
2.)
3.)
4.)
PNB vs. PEREZ (16 SCRA 279) & PEPSI COLA vs. GUANZON
(172 SCRA 571)
That the court has no jurisdiction over the subject
matter;
That there is another action pending between the
same parties for the same cause (litis pendentia);
That the action is barred by prior judgment (res
adjudicata); and
That the action is barred by statute of limitation
(prescription).
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.”
Q: Can the court dismiss the action based on any of these grounds
without the filing of a motion to dismiss?
Take note that the exceptions can be raised at any time during or
after the trial, or even for the first time on appeal. In other words,
the court shall dismiss the claim if any of the foregoing grounds
appears from the pleadings or the evidence on record.
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)
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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.
during the hearing and to cross-examine the witnesses presented.
However, it would not amount to a waiver of the defendant’s right
to present evidence during the trial dates scheduled for the
reception of evidence for the defense. It is error for the court to
issue an order not denominated as an order of default but provides
for the application of the effects of default as when the defendant
who has filed an answer is not allowed to present evidence
because of her absence during the presentation of evidence by the
plaintiff (Monzon Spouses Relova vs. Addio Properties, Inc. GR
1712827, September 17, 2008)
Sec. 2. Compulsory counterclaim, or crossclaim, not set up barred. A compulsory
counterclaim, or a cross-claim, not set up
shall be barred. (4a)
Requisites before a party may be declared in default:
See discussions on Rule 6, Sections 7 and 8 on counterclaim and
cross-claims, respectively.
1.
RULE ON DEFAULT
2.
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)
3.
4.
5.
6.
The Court must have acquired jurisdiction over the
person of the defendant thru a valid service of summons
or voluntary appearance;
The defending party must have failed to file his answer
within the reglementary period or within the period
fixed by the court;
there must be a motion to declare the defendant in
default;
The defending party must be notified of the motion to
declare him in default (Sec. 3 R 9)
There must be a hearing of the motion to declare the
defendant in default; and
There must be proof of such failure to answer.
Where no defaults are allowed:
1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
xxxxxx
4. Special Civil Actions of certiorari, prohibition and mandamus
where comment instead of an answer is required to be filed; and
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
5. Summary Procedure.
The required hearing is mandated by Sec. 4 of Rule 15 which states:
“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.”
It is the failure of the defendant to answer within the proper
period, not his failure to appear nor failure to present evidence
which is the basis of a declaration of default.
It does not occur from the failure of the defendant to attend either
the pre-trial or the trial.
Failure to file an answer under the Rule on Summary Procedure
Under this rule, the defendant is not supposed to be declared in
default. Instead the court motu proprio, or on motion of the
plaintiff, shall render judgment (not to declare the defendant in
default) as may be warranted by the facts alleged in the complaint
and limited to what is prayed for (Sec. 6, II, 1991Rule on Summary
Procedure). This represents a principal distinction between default
in regular civil proceedings and the rule on summary procedure.
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.
The defendant’s non-appearance in the hearing and the failure to
adduce evidence does not constitute default when an answer has
been filed within the reglementary period. The failure of the
defendant to attend the hearings for the presentation of the
evidence of the adverse party amounts not to a default, but to a
waiver of the defendant’s right to object to the evidence presented
Also, under the Rule on Summary Procedure, the plaintiff is
prohibited from filing a motion to declare the defendant in default
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(Sec. 19[h], 1991 Rule on Summary Procedure). This is another
significant departure from the regular rule.
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)
Effect of a declaration/order of default
1.
2.
3.
The party declared in default loses his standing in court.
The loss of such standing prevents him from taking part
in the trial (Sec. 3[a], Rule 9);
While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3[a], Rule 9)/. It is submitted that he
may participate in the trial, not as a party but as a
witness (Riano).
A declaration of default is not an admission of the truth
or the validity of the plaintiff’s claims (Monarch
Insurance vs. CA 333 SCRA 7 [2000]; Vlason Enterprises
Corp. vs. CA 310 SCRA 26).
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 authorized to conduct or
hear an ex-parte reception of evidence.
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.
SUMMARY: Steps when the defendant fails to file an answer within
the time allowed:
Action of the court after the declaration/order of default
1.
2.
3.
It can do either of the following:
1.
2.
To proceed to render judgment, or
To require the plaintiff to present his evidence ex parte.
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.
Motion to declare defendant in default;
Declaration or Order of default; and
Rendition of Judgment by Default or 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 dispense with the ex-parte
presentation of evidence and when should it require the claimant
to submit evidence being discretionary?
Q: Suppose the defendant filed an answer but during the trial, he
failed to appear. May he be declared in default?
According to Inigo, in cases which are simple, presentation of
evidence ex-parte can be dispensed with like collection cases.
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.
But in controversial cases, like recovery of a piece of land the judge
ought 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.
BAR QUESTION: If the defendant is declared in default for failure to
file an answer is he deemed to have admitted the allegations in the
complaint to be true and correct?
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 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. 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.
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
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:
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.”
Rule 30, Sec. 9. Judge to receive evidence;
delegation to clerk of court. The judge of the
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Effect of pendency of a Motion to Dismiss or for Bill of Particulars
Answer filed out of time may be admitted
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?
Where there is no declaration of default, answer may be admitted
even if filed out of time. Where answer has been filed, there can be
no declaration of default anymore. (Guillerma S. Sablas vs. Esterlita
S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)
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)
(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)
But said motions must follow the requirements otherwise they will
be treated as mere scraps of paper and will not toll the running of
the period to answer.
In the case of
So if you are declared in default, you cannot take part in the trial.
You lose your standing in court, you cannot cross-examine 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.
DEL CASTILLO vs. AGUINALDO – 212 SCRA 169 [1992]
Right of a party in default
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?
He is entitled to notice of:
1. Motion to declare him in default;
2. Order declaring him in default;
HELD: NO. He can be ordered in default. The motion is a
useless piece of paper with no legal effect.
3. Subsequent proceedings; and
4. Service of final orders and judgments.
“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.”
Note: A defendant declared in default cannot take part in the trial,
but he cannot be disqualified from testifying as a witness in favor
of non-defaulting defendants (Cavile vs. Florendo GR No. 73039,
Oct. 9, 1987)
If the defendant was declared in default upon an original
complaint, the filing of the amended complaint results in the
withdrawal of the original complaint, hence, the defendant is
entitled to file an answer to the amended complaint as to which he
was not in default.
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 but such motion was also denied. Can he still
file an answer?
Judicial discretion to admit answer filed out of time
It is within the sound discretion of the trial court to permit the
defendant to file his answer and to be heard on the merits after the
reglementary period for filing the answer expires. The Rules of
Court provides for discretion on the part of the trial court not only
to extend the time for filing an answer but also to allow an answer
to be filed after the reglementary period. It is not correct to say
that a trial court has no recourse but to declare a defending party
in default when he fails to file an answer within the required
period. In fact, the rule is that the answer should be admitted
where it is filed before a defending party is declared in default and
no prejudice is caused to the other party and that there is no
showing that the defendant intends to delay the case (Sablas vs.
Sablas GR 144568, July 3, 2007) The hornbook rule is that default
judgments are generally disfavored (Paramount Insurance Corp.,
vs. A.C. Ordonez Corporation, GR No. 175109, August 6, 2008).
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.
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Current Judicial Trend on Default
A: He may file a motion to set aside the order of default at any
time after notice thereof and before judgment.
The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default.
(Ampeloquio vs. CA 333 SCRA 465
SUMMARY: Steps the defendant should take to set aside the order
of default:
The issuance of orders of default should be the exception rather
than the rule and to be allowed only in clear cases of obstinate
refusal by the defendant to comply with the orders of the trial
court (Lorbes vs. CA GR 139884 February 15, 2001) because suits
should as much as possible, be decided on the merits and not on
technicalities (Samartino vs. Raon GR 131482 July 3, 2002). Thus, in
practice, an answer under oath containing the defenses of the
defendant, may under the rules on liberal interpretation, be
deemed as equivalent of an affidavit of merit.
1.
2.
3.
File a motion to lift or set aside the order of default. The
motion must be verified and under oath;
He must explain why he failed to file an answer due to
FAME; and
He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice
(Sec. 3b)
Remedies of a defending party declared in default:
The policy of the law is to have every litigant’s case tried on the
merits as much as possible. Hence, judgments by default are
frowned upon. A case is best decided when all contending parties
are able to ventilate their respective claims, present their
arguments and adduce evidence in support thereof. (Sablas vs.
Sablas GR 144568 July 3, 2007).
(1) Remedy after notice of order and before judgment – The
defendant must file a motion under oath to set aside the
order of default and show that
a. the failure to answer was due to fraud,
accident, mistake or excusable negligence
(FAMEN) and that
b. the defendant has a meritorious defense, i.e.,
there must be an affidavit of merit (Sec. 3[b],
Rule 9); Villareal vs. CA 295 SCRA 511;
Republic vs. Sandiganbayan GR No. 148154,
December
17,
2007;
Republic
vs.
Sandiganbayan, 540 SCRA 431)
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)
(2) Remedy after judgment and before judgment becomes
final and executor – The defendant may file a motion for
new trial under Rule 37. He may also appeal from the
judgment as being contrary to the evidence or the law
(Talsan Enterprises, Inc. vs. Baliwag Transit, Inc. 310
SCRA 156; Lina vs. CA 135 SCRA 637)
(3) Remedy after the judgment becomes final and executory
– The defendant may file a petition for relief from
judgment under Rule 38 (Balangcad vs. Justices of the CA
GR No. 83888, February 12, 1992; Republic vs.
Sandiganbayan [supra])
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]
(4) Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or from
the judicial records, he may avail of the special civil
action of certiorari under Rule 65 (Balangcad vs. Justices,
supra)
Meaning, even if you are a victim of FAME, if you have no
meritorious defense, the court will not lift the order of default.
Implied Lifting of the Order of Default
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.
“While it is true that there was no positive act on the part of the
court to lift the default order because there was no motion nor
order to that effect, the anti-graft court’s act of granting
respondent the opportunity to file a responsive pleading meant the
lifting of the default order on terms the court deemed proper in
the interest of justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant
Q: When can the defendant avail of this remedy?
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whom respondent is representing, founded on the court’s
discretionary power to set aside orders of default.
litigation totally common with them in kind and in amount whether
favorable or unfavorable (Remigia Grageda, et al., vs. Hon. Nimfa
Gomez and Haudiny Grageda, GR No. 169536, Sept. 21, 2007).
Flow Chart of Remedies from Judgment by Default
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.
Judgment by default
Motion for New Trial or Reconsideration at any time after service of
judgment by default and within 15 (30) days therefrom
Failure to file Motion for New Trial/Reconsideration or Denial of said
Motion
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?
Perfect Appeal from said judgment by default within the balance of
said 15 (30) day period
Failure to Appeal without defendant's fault
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.
Petition for Relief from Judgment within 60 days from notice of
judgment but within 6 months from entry thereof
Annulment of Judgment under R 47
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!
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)
NOTE: that to apply the principle, there must be a common cause
of action. If there is no common 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
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.
CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
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 judgment.
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.
ISSUE: Is the motion of Gary proper?
Effect of partial default
In all instances where a common cause of action is alleged against
several defendants, some of whom answer and the others do not,
the latter or those in default acquire a vested right not only to own
the defenses interposed in the answer of their co-defendant or codefendants not in default but also to expect a result of the
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
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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.
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
was impleaded), the case would still proceed without
prejudicing the party not impleaded.”
However, the ruling in ACOSTA should not be confused with the
ruling in
IMSON vs. CA [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.
“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.
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 but
constituted only a part of the total claim.
(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)
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.
This is what we call LIMITATIONS on a default judgment:
1)
2)
3)
ISSUE #1: Is there a common cause of action among the three
of them?
The default judgment should not exceed the amount
prayed for in the complaint;
The default judgment should not be different in kind
from that prayed for in the complaint;
The default judgment should not award unliquidated
damages.
Extent of relief in a judgment by default
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.
If the complaint seeks to recover P1 million but the evidence of the
plaintiff shows a right to recover P1.5 million, the court has no
authority to grant the latter amount despite the evidence. This is
because under the Rules, “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” (Sec. 3[d]; Vlason
vs. CA 310 SCRA 26)
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?
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.
A: NO. It should only be P300,000 as prayed for in the complaint.
So, there is no common cause of action among them.
Q: Suppose during the trial, only P200,000 was proved. What
should be the amount of the default judgment?
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.
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.
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FUNDAMENTAL REASON ON THE RULE ON DEFAULT
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.
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.
“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.”
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.
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 judgment by default, he actually loses his
standing in court.
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?
They added a new (third) limitation – Unliquidated damages cannot
be awarded in default judgment. Obviously liquidated ones can be.
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.
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.
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.
LIQUIDATED DAMAGES are those which are already fixed and
proof or evidence to establish the same are not required. An
example is an obligation with a penal clause like an agreement to
construct a house and upon failure to finish the same within a
stipulated period, the contractor is liable for P10,000 for every day
of delay. The amount is already fixed based on the contract price
and the penalty provided and such other circumstances as
stipulated.
Q: 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.
So, in an action for unliquidated damages, let the defendant be
declared in default anyway the court can never award those
damages. Because if I will zanswer, damages can be awarded. 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.
MANGELIN vs. CA – 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.
(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
BUT if there’s an ex-parte reception of evidence against a
defendant who filed an answer but FAILED TO APPEAR during
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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)
the
various
modes
of
discovery (Sec. 3[c] Rule 29; or
(b) If a party or officer or managing
agent of a party willfully fails
to appear before the officer
who is to take deposition or a
party fails to serve answers to
interrogatories. (Sec. 5 Rule
29)
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 break-ups.
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.
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.
Judgment by default for refusal to comply
with the modes of discovery
The rule is that a default order and
consequently a default judgment is triggered
by the failure of the defending party to file
the required answer (Sec. 3 Rule 9). By way of
exception, a judgment by default may be
rendered in the following cases despite an
answer having been filed:
(a) If a party refuses to obey an order
requiring him to comply with
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Rule 10
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 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.
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)
TYPES OF AMENDMENTS:
The following are the important points to remember here:
Pleadings may be amended by:
1)
2)
3)
4)
5)
6)
FIRST, there are two types of amendment of pleadings under the
rules:
adding an allegation of a party
adding the name or substituting a party
striking out an allegation of a party;
striking out the name of a party;
correcting a mistake in the name of a party; and
correcting a mistake or inadequate allegation or
description in any other respect.
1)
2)
An amendment as a matter of right; or
An amendment as a matter of judicial discretion
SECOND, an amendment could be
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. 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:
1)
2)
a formal amendment; or
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
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.
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. If the court
refuses to admit the amended pleading such refusal is correctible
by mandamus.
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. This is also known as
amendment by leave of court.
Q: What is the policy of the law on amendments?
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
AMENDMENT AS A MATTER OF RIGHT
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)
(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)
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Amendment as a matter of right at any time before a responsive
pleading is served or in case of a Reply, within 10 days after it is
served.
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)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend
my complaint. When is the amendment a matter of right?
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 because
anyway that is a harmless correction.
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.
NOTE: Change of amount of damages is only formal because there
is no change in the cause of action.
Q: How about the defendant? Suppose he wants to change his
answer, when is his right absolute or as a matter of fact right?
SUMMARY: Amendment as a matter of 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.
1)
2)
3)
4)
Rule applicable before the trial court not on appeal
Before an answer is filed (Complaint);
Before a reply is filed or before the period for filing a
reply expires (Answer);
Any time within 10 days after it is served (Reply); and
Formal amendment
A motion to dismiss is not a responsive pleading
Section 2 refers to an amendment made before the trial court,
not to amendments before the Court of Appeals. The CA is vested
with jurisdiction to admit or deny amended petitions filed before it
(Navarro vs. Vda. De Taroma, 478 SCRA 336).
If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the motion
to dismiss. Such a motion is not a responsive pleading and its filing
does not preclude the exercise of the plaintiff’s right to amend his
complaint (Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA
106; Remington Industrial Salesvs. CA 382 SCRA 499).
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.
In a case, the defendant, instead of filing an answer filed a motion
to dismiss on the ground that the plaintiff is not a juridical person
and thus, cannot be a party to the case. The plaintiff filed a motion
to admit an amended complaint which was admitted by the trial
court. As to whether or not plaintiff could so amend his complaint
as a matter of right, the Supreme Court reiterated the rule that a
party may amend his pleading once as a matter of right at any time
before a responsive pleading is served. The Court declared that a
motion to dismiss is not a responsive pleading and so the duty of
the trial court is to admit the amended complaint. Such duty is a
ministerial one because the amendment, under the circumstances,
is a matter of right. In fact the plaintiff should not have filed a
motion to admit the amended complaint (Alpine Lending Investors
vs. Corpuz 508 SCRA 45).
A: So under Section 2, the plaintiff can amend his reply at any time
within ten (10) days after it is served.
Before the service of a responsive pleading, a party has the
absolute right to amend his pleading, regardless of whether a new
cause of action or change in the theory is introduced (Bautista vs.
Maya-Maya Cottages, Inc. 476 SCRA 416).
Applicability of Mandamus
The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. This error is
correctible by mandamus (Breslin vs. Luzon Stevedoring 84 Phil.
618; Ong Peng vs. Custodio 1 SCRA 780) because the trial court’s
duty to admit an amended complaint made as a matter of right is
purely ministerial (Alpine Lending Investors vs. Corpuz 508 SCRA
45).
Even if the motion to dismiss is granted by the court, the plaintiff
may still amend his complaint as a matter of right before the
dismissal becomes final as long as no answer has yet been served.
(Bautista vs. Maya-Maya Cottages Inc. [supra]).
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?
Following the above rule, an amendment to the complaint sought
to be made one month after notice of the order dismissing the
complaint can no longer be allowed because the order of dismissal
has already become final due to the failure to perfect an appeal. As
a rule, the aggrieved party must perfect his appeal within the
period as provided for by law. The rule is mandatory in character. A
party’s failure to comply with the law will result in the decision
becoming final and executory and, as such, can no longer be
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
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modified or reversed. Thus, it is beyond the power or jurisdiction of
the court which rendered the decision or order to amend or revoke
the same after the lapse of the fifteen-day reglementary period to
file an appeal (National Mines and Allied Workers Union GR
157232, December 10, 2007)
The clear import of Sec. 3 of Rule 10 is that under the 1997 Rules,
an amendment may now be allowed by the court even if it
substantially alters the cause of action or defense (PPA vs. William
GoThong & Aboitiz [WG&A], Inc. 542 SCRA 406 [2008])
Q: Assuming that the amendment is a matter of judicial
discretion, how should the court resolve it?
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
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.
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)
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?
Q: When is an amendment a matter of judicial discretion?
A: The following:
A: 1. If the amendment must be substantial; and
1.)
2.)
2. The adverse party has already filed and served a copy of his
responsive pleading.
3.)
The plaintiff, for example, cannot amend his complaint by changing
his cause of action or adding a new one without leave of court
(Calo and San Jose vs. Roldan 756 Phil 445; Buenaventura vs.
Buenaventura 94 Phil. 193)
when the amendment is to delay the action (Section 3);
when the amendment is for the purpose of making the
complaint confer jurisdiction upon the court (Rosario vs.
Carangdang, 96 Phil. 845);
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)
4.) When the cause of action, defense or theory of the
case is changed.
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
After a responsive pleading is filed, an amendment to the
complaint may be substantial and will correspondingly require a
substantial alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the defendant
but will cause unnecessary delay in the proceedings. Leave of court
is thus, required. On the other hand, where no responsive pleading
has yet been served, no defenses would be altered. The
amendment of the pleading will not then require leave of court
(Siasoco vs. CA 303 SCRA 186).
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.
Amendment discretionary
Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court
is accorded sound discretion to grant or deny the admission of any
proposed substantial amendments to a pleading after a responsive
pleading has been filed. Generally, where the trial court has
jurisdiction over the case, proposed amendments are denied if such
would result in delay, or would result in a change of a cause of
action or defense or change the theory of the case, or are
inconsistent with the allegations in the original complaint. (Vivian
Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August 9,
2007)
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
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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
sustained the trial court as being consistent with the purpose and
spirit of the Rules (Gumabay vs. Baralin 77 SCRA 258).
In another case filed before the City Court of Manila to recover
unpaid rentals with a prayer that an order be issued for the
surrender of the premises by the defendant to the plaintiff, the
defendant filed a motion to dismiss on the ground that the amount
sought to be recovered is beyond the jurisdiction of the court and
that there are no allegations in the complaint showing that the
defendant was unlawfully withholding the premises from the
plaintiff. Before action could be taken on the motion to dismiss, the
plaintiff amended the complaint, to include the requisite
allegations. The court denied the motion to dismiss and the
opposition to the amended complaint. The court ruled that since
no responsive pleading was served at the time of the amendment,
the plaintiff had done so as a matter of course. Reiterating the rule
that a motion to dismiss is not a responsive pleading, the SC
sustained the trial court (Soledad vs. Mamangun 8 SCRA 110).
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.”
Amendment to correct a jurisdiction defect after a responsive
pleading is served:
An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served. The
amendment this time would require leave of court, a matter which
requires the exercise of sound discretion. The exercise of this
discretion requires the performance of a positive act by the court.
If it grants the amendment, it would be acting on a complaint over
which it has no jurisdiction. Its action would be one performed
without jurisdiction.
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.
The situation is vastly different from an amendment as a matter of
right. Here the court does not act. The admission of the
amendment is a ministerial duty of the court. It requires no positive
action from the court. Since it would not be acting in this regard, it
could not be deemed as acting without jurisdiction.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING
THE COMPLAINT CONFER JURISDICTION UPON THE COURT
Amendment to correct a jurisdictional defect before a responsive
pleading is served:
In one case, a former employee filed an action for recovery of
compensation for unpaid holiday and overtime services with the
then Court of Industrial Relations against his former employer. The
defendant filed a motion to dismiss but was denied. The
defendant-employer then filed an answer invoking as one of its
affirmative defenses lack of jurisdiction of the court over the
subject matter since the complaint did not allege the existence of
an employer-employee relationship between the parties. The
complaint alleged neither illegal dismissal nor seeks for the
reinstatement of the plaintiff. Realizing a jurisdictional error, the
plaintiff filed leave to amend his complaint and to admit an
amended pleading alleging illegal dismissal and a claim for
reinstatement. Speaking on the issue of the propriety of the
admission of the amendment, the SC ruled that a “complaint
cannot be amended to confer jurisdiction on the court in which it
was filed, if the cause of action originally set forth was not within
the court’s jurisdiction” (Campos Rueda Corp. vs. Bautista 6 SCRA
240; Rosario vs. Carandang 96 Phil. 845). Note that in Campos
Rueda, an answer has already been served and filed.
A fair reading of jurisprudence recognizes the right of a pleader to
amend his complaint before a responsive pleading is served even if
its effect is to correct a jurisdictional defect. The argument that the
court cannot allow such type of amendment since the court must
first possess jurisdiction over the subject matter of the complaint
before it can act on any amendment has no application upon an
amendment that is made as a matter of right.
In one case involving litigation over a parcel of land, the complaint
filed with the then CFI was a complaint alleging forcible entry. The
defendants filed a motion to dismiss alleging that the court has no
jurisdiction over an action for forcible entry. Without waiting for
the resolution of the motion to dismiss, the plaintiff filed an
amended complaint with new allegations which transformed the
original allegations of forcible entry into an action for quieting of
title, an action which at that time was cognizable by the CFI. The
trial court admitted the amended complaint, ordered the
defendants to answer it and denied the motion to dismiss. The SC
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Similarly, in an action for damages filed before the then CFI against
a sheriff for an alleged illegal levy upon the property of the
plaintiff, the latter sought to amend his complaint after an answer
has been served by the defendant. The amendment was made
when the plaintiff realized that the amount alleged as damages was
below the jurisdiction of the court. The SC held that it was error to
admit the amendment because the court must first acquire
jurisdiction over the subject matter of the complaint in order to act
validly on the same including its amendment (Gaspar v. Dorado 15
SCRA 331).
presented by the parties during the trial and was not objected to.
The provision also covers situations where, to conform to evidence
not objected to by the adverse party. Thus, a complaint which fails
to state a cause of action may be cured by evidence presented
during the trial.
For example, a complaint filed by a guarantor to collect a sum of
money from the debtor fails to state a cause of action if the
complaint does not allege that the creditor of the debtor has been
paid by the guarantor even if in fact there was payment. However,
if during the course of the proceedings, evidence is offered on the
fact of payment without objection from the debtor, the defect in the
complaint was cured by the evidence. The plaintiff may then move
for the amendment of his complaint to conform to the evidence.
(Philippine Export and Foreign Loan Guarantee Corporation vs.
Philippine Infrastructures Inc. 419 SCRA 6).
In other words, if based on the original complaint the court has no
jurisdiction over the subject matter and the defendant has already
filed an answer, can I still amend the complaint so that the court
will have jurisdiction? No, 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.
No amendment where no cause of action exists:
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 P200,001.00. 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.
Q: May a complaint that lacks a cause of action at the time it was
filed be cured by the accrual of a cause of action during the
pendency of the case?
This was the basic issue raised in one significant case (Swagman
Hotels and Travel Inc vs. CA, 455 SCRA 175). When the case was
filed none of the promissory notes subject of the action was due
and demandable but two of the notes became due during the
pendency of the action.
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?
Sec. 5 of Rule 10 allows a complaint that does not state a cause of
action to be cured by evidence presented without objection during
the trial. The trial court ruled that even if the private respondent
had no cause of action when he filed the complaint for a sum of
money and damages because none of the three promissory notes
was due yet, he could nevertheless recover on the first two
promissory notes which became due during the pendency of the
case in view of the introduction of evidence of their maturity
during the trial.
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.
The court rules that such interpretation is erroneous. It further
said:
“Amendments of pleadings are allowed under Rule 10 of the 1997
Rules of Civil Procedure in order that the actual merits of a case
may be determined in the most expeditious and inexpensive
manner without regard to technicalities, and that all other matters
included in the case may be determined in a single proceeding,
thereby avoiding multiplicity of suits. Section 5 thereof applies to
situations wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and to
conform to such evidence the pleadings are subsequently amended
on motion of a party. Thus, a complaint which fails to state a cause
of action may be cured by evidence presented during the trial.
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.
Amendment to cure a failure to state a cause of action:
If the complaint failed to aver the fact that certain conditions
precedent were undertaken and complied with, the failure to so
allege the same may be corrected by an amendment to the
complaint. Section 5 of Rule 10 likewise applies to situations
wherein evidence not within the issues raised in the pleadings is
“However, the curing effect under Section 5 is applicable only if a
cause of action in fact exists at the time the complaint is filed, but
the complaint is defective for failure to allege the essential facts.
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For example, if a complaint failed to allege the fulfillment of a
condition precedent upon which the cause of action depends,
evidence showing that such condition had already been fulfilled
when the complaint was filed may be presented during the trial,
and the complaint may accordingly be amended thereafter. Thus,
in Roces vs. Jalandoni, this Court upheld the trial court in taking
cognizance of an otherwise defective complaint which was later
cured by the testimony of the plaintiff during the trial. In that case,
there was in fact a cause of action and the only problem was the
insufficiency of the allegations in the complaint. It thus follows that
a complaint whose cause of action has not yet accrued cannot be
cured or remedied by an amended or supplemental pleading
alleging the existence or accrual of a cause of action while the
case is pending. Such an action is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the
court upon proper motion seasonably filed by the defendant. The
underlying reason for this rule is that a person should not be
summoned before the public tribunals to answer for complaints
which are immature.”
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 from quasidelict. 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.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of
action from IMPERFECT cause of action?
A: The following are the distinctions:
1.)
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
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
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 information 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.
In an IMPERFECT cause of action, a delict or wrong
has already been committed and alleged in
the complaint, but he 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
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.
an IMPERFECT cause of action is curable by
amendment (Alto Surety vs. Aguilar, L-5625,
March 16, 1945; Ramos vs. Gibbon, 67 Phil.
371).
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 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.
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?
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.
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
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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?
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.
A: YES. But what is allowed is only formal amendment and with
leave of court. Substantial amendment is 100% prohibited in
criminal cases. But in civil cases, formal amendment is still a matter
of right hence, does not require leave of court, while substantial
amendment is discretionary.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED;
EXCEPTION
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.
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)
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 on 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 to 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.”
When issues not raised in the pleadings are tried with the express
or implied consent of the parties1.
2.
3.
they shall be treated as if raised in the pleadings;
pleadings may be amended to conform to the evidence;
and
failure to amend does not affect the result of the trial of
these issues.
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.
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.
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.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be
relaxed?
Amendment to conform to evidence
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 curing effect under Sec. 5 R 10 is applicable only if a cause of
action in fact exists at the time the complaint is filed. Unless the
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plaintiff has a valid and subsisting cause of action at the time his
action is commenced, the defect cannot be cured or remedied by
the acquisition or accrual of one while the action is pending, and a
supplemental complaint or an amendment setting up such after
accrued cause of action is not permissible. The action in the case at
bar is prematurely brought and is, therefore, a groundless suit,
which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this
rule is that a person should not be summoned before the public
tribunals to answer for complaints which are premature. (Swagman
Hotels and Travel, Inc. vs. CA and Neal Christian, GR No. 161135,
April 8, 2005)
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.
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.
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.
“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.”
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
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.
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)
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?
The second part of Rule 10 is on supplemental pleadings
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.
A supplemental pleading is one which avers facts occurring after
the filing of the original pleadings and which are material to the
matured claims and/or defenses therein alleged. (Herrera vol. 1 p.
603)
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.”
Cause of action in supplemental pleadings
The cause of action stated in the supplemental complaint must be
the same as that stated in the original complaint. Otherwise, the
court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
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When the cause of action in the supplemental complaint is different
from the cause of action mentioned in the original complaint, the
court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA 324 SCRA 533).
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,
As its very name denotes, a supplemental pleading only serves to
bolster or add something to the primary pleading. A supplemental
pleading exists side by side with the original. It does not replace
that which it supplements. Moreover, a supplemental pleading
assumes that the original pleading is to stand and that the issues
joined with the original pleading remained an issue to be tried in
the action. It is but a continuation of the complaint. Its usual office
is to set up new facts which justify, enlarge or change the kind of
relief with respect to the same subject matter as the controversy
referred to in the original complaint.
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:
When the cause of action stated in the supplemental complaint is
different from the causes of action mentioned in the original
complaint’ the court should not admit the supplemental complaint;
the parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action (Young vs. Spouses Sy, 503 SCRA
151).
Rule 11, Section 9. Counterclaim or cross-claim
arising after answer. – A counterclaim or 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 cross-claim by supplemental
pleading before Judgment.
Answer to a supplemental pleading; not mandatory
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.
“Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are
relevant, thus:
Sec. 6. Supplemental pleadings. – xxxxx The adverse
party may plead thereto within ten (10) days from
notice of the order admitting the supplemental
pleading.
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 a supplemental pleading ? And
that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
Sec. 7. Answer to supplemental complaint. – xxxx The
answer to the complaint shall serve as the answer to
the supplemental complaint if no new or supplemental
answer is filed.
“As can be gleaned from the above provisions, the filing of an
answer to the supplemental pleading is not mandatory because of
the use of the word “may”. This is bolstered by the express
provision of the Rules that the answer to the original pleading shall
serve as the answer to the supplemental pleading if no new or
supplemental answer is filed. Thus, the court cannot declare the
respondent in default simply because the latter opted not to file
their answer to the supplemental petition (Chan vs. Chan GR
150746, October 15, 2008).
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.
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:
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
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now file a supplemental pleading and as a result, there
will be two (2) complaints for P100,000 each.
happened after the filing of the first pleading sought to be
supplemented.
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.
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 be 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.
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:
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. 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.
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.
Q: Is that proper?
That is related to the rule in evidence that what need not be
proved: judicial notice, judicial admissions.
A: YES because these are not two separate loans but one loan and
the installments are interrelated.
THIRD DISTINCTION:
The filing of an AMENDED pleading could be a matter of right
or of judicial discretion under Sections 2 and 3; whereas
SUPERCLEAN SERVICES INC. vs. CA – 258 SCRA 165 [1996]
The filing of a SUPPLEMENTAL pleading is always a matter of
judicial discretion under Section 6. There is always leave of
court.
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.
Now, let us cite cases which are relevant to our topic on
supplemental pleadings.
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 them.
LEOBRERA vs. CA – 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
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
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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.
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.
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.
An amendment which merely supplements and amplifies facts
originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)
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?
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.
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.”
(Section 8: See discussion on Section 6 on distinctions between an
amended and supplemental pleading; second distinction)
“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.
Effect of Amended Pleading
1.
2.
3.
An amended pleading supersedes the pleading that it
amends;
Admissions in the superseded pleading can still be
received in evidence against the pleader;
Claims or defenses alleged therein but not incorporated
or reiterated in the amended pleading are deemed
waived.
Note: Admission in a superseded pleading is an extrajudicial
admission and may be proved by the party relying thereon by
formal offer in evidence. (Regalado p. 193)
“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.
Some authors though are of the opinion that admissions in
superseded pleadings need not be offered in evidence pursuant to
Sec. 4 R 129.
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.
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: 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.
EXAMPLE: A party would to insert an entirely new paragraph. That
paragraph would be underlined. The purpose for such marking is
It has been held however, that the original complaint is deemed
superseded and abandoned by the amendatory complaint only if
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the latter introduces a new or different cause of action (Verzosa vs.
CA 299 SCRA 100).
Effect of amendment on admissions made in the original pleading
Admissions made in the original pleadings cease to be judicial
admissions (Ching vs. CA 331 SCRA 16). They are to be considered
as extrajudicial admissions (Bastida vs. Menzi & Co., Inc., 58 Phil.
188; Torres vs. CA 131 SCRA 224). “However, admissions in
superseded pleadings may be received in evidence against the
pleader…” (Sec. 8 Rule 10) and in order to be utilized as
extrajudicial admissions, they must, in order to have such effect, be
formally offered in evidence (Ching vs. CA, 331 SCRA 16).
When summons not required after complaint is amended
Although the original pleading is deemed superseded by the
pleading that amends it, it does not ipso facto follow that the
service of new summons is required. Where the defendants have
already appeared before the trial court by virtue of a summons in
the original complaint, the amended complaint may be served
upon them without need of another summons, even if new causes
of action are alleged. A court’s jurisdiction continues until the case
is finally terminated once it is acquired. Conversely, when the
defendants have not yet appeared in court, new summons on the
amended complaint must be served on them. It is not the change
of the cause of action that gives rise to the need to serve another
summons for the amended complaint but rather the acquisition of
jurisdiction over the persons of the defendants. If the trial court
has not yet acquired jurisdiction over them, a new summons for
the amended complaint is required (Vlason Enterprises vs. CA 310
SCRA 26).
However, where a new defendant is impleaded, summons must be
served upon him so that the court may acquire jurisdiction over his
person because logically, the new defendant cannot be deemed to
have already appeared by virtue of summons under the original
complaint inn which he was not yet a [arty (Arcenas vs. CA 299
SCRA 733).
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Rule 11
excluded and of course the last day is included. And if the last day
is the next working day, it is done on the next business day. Here,
there is an automatic extension.
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.
Rule 22, 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.
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)
The day of the act that caused the
interruption shall be excluded in the
computation of the period. (n)
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.
Alright, a good example of this is the 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 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.
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 –these are instances when service of summons by publication is
prescribed.
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.” The meaning of this is exemplified in
the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
Let’s give example to the general rule.
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.
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 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:
My QUESTION is, how many days more do you have or left to file
your answer? Five days?
How many days did you consume?
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 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)
From November 30 to December 10 = 10 days, and from December
10 to December 15 = not counted. And you still have 5 days, so
December 20.
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?
Now, when did you file your motion? December 10. Therefore,
December 10 is not counted because it is already interrupted.
Under Section 1, Rule 22 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
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
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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.”
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.
ILLUSTRATION:
November 30
December 10
December 15
December 21
Defendant
received
Summons
Defendant filed a
Motion to
Dismiss
Motion to
Dismiss is denied.
Deadline to file
the Answer
Summary
Answer to a Complaint
1.
Within 15 days after service of summons, unless a
different period is fixed by the Court;
2.
In case the defendant is a foreign private juridical entity:
a. If it has a resident agent - within 15 days after service
of summons to him;
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?
b.
if it has no resident agent, but it has an agent or
officer in the Philippines - within 15 days after
service of summons to said agent or officer;
c.
if it has no resident agent, nor agent nor officer - in
which case service of summons is to be made on the
proper government office (now the SEC) which will
then send a copy thereof by registered mail within
10 days to the home office of the foreign private
corporation - within 30 days after receipt of
summons by the home office of the foreign private
entity.
3.
In case of service of summons by publication - within the
time specified in the order granting leave to serve
summons by publication, which shall not be less than 60
days after notice (R 14, Sec. 15; and
4.
In case of a non-resident defendant on whom
extraterritorial service of summons is made, the period
to answer should be at least 60 days.
The court may extend the time to file the pleadings but may not
shorten them (Except in Quo Warranto proceedings)
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
defendant in Section 1.
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.
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 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.
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
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law
to receive summons?
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complaint, and
intervention. (3a)
amended
complaint-in-
Alright, the third paragraph of Section 3 is new. It includes
amended counterclaims, amended cross-claims.
Now, what is the period to file an answer to an amended
complaint?
Sec. 4. Answer to counterclaim or cross-claim.
A counterclaim or cross-claim must be
answered within ten (10) days from service.
(4)
Under Section 3, there are two (2) periods – first paragraph, 15
days; second paragraph, 10 days. Now what is the difference?
1)
2)
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.
If the filing of an amended complaint is a matter of right
- within 15 days from service of the amended complaint.
If the filing of an amended complaint is not a matter of
right - within 10 days counted from notice of the court
order admitting the same.
Q: What happens if the plaintiff does not answer the counterclaim
of the defendant?
The Rule shall apply to the answer to an amended counterclaim,
amended cross-claim; amended third (fourth, fifth, etc. ) party
complaint and amended complaint-in-intervention.
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.
If no new Answer is filed, answer to original pleading shall be
deemed as answer to the amended pleading.
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.
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.
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.
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 a copy of the order
admitting the amended complaint, 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.
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.”
So practically, the issue on negligence is being thrown back. Now,
the plaintiff did not answer the counterclaim, can he be declared in
default?
So, there are two (2) periods to file an answer to an amended
complaint.
NO, because if you require the plaintiff to file an answer, what will
he say? The same, “NO, you were the one at fault!”He will just be
repeating what he already alleged.
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?
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)
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 are still
applicable.
Sec. 6. Reply. A reply may be filed within ten
(l0) days from service of the pleading
responded to. (6)
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.
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The third-party defendant is served with summons just like the
original defendant. Hence, he also has 15, 30 or 60 days from
service of summons, as the case may be, to file his answer.
If the counterclaim or cross-claim was acquired by a party after
serving his pleading, he may raise it by way of supplemental
pleading. But if a pleader fails to set up a counterclaim or a crossclaim which is already matured when he filed his pleading due to
oversight inadvertence or excusable neglect, then he may raise it
by way of amended pleading before judgment. Leave of court is
necessary.
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)
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)
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
unless a different period is fixed by the court.
Requisites:
1.
2.
3.
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.
There must be a motion;
With service of such motion to other party; and
On such terms as may be just.
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.
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)
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. Others are because of the traditional mañana
habit. We usually act during the deadline.
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.
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.
Sec. 9. Counterclaim or cross-claim arising
after answer. A counterclaim or a cross-claim
which either matured or was acquired by a
party after serving his pleading may, with the
permission of the court, be presented as a
counterclaim
or
a
cross-claim
by
supplemental pleading before judgment. (9,
R6)
Q: Now what happens if the lawyer fails to file such a motion? So
the 15 days already expired, then on the 18th, he will now file an
answer. 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.”
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 cross-claim by
amendment before judgment. (3a, R9)
EXAMPLE: The deadline is 3 days ago. I failed to file my answer but
now it is ready. So, “motion to admit belated answer.”
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.
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.
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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 30 days representative
15 days
3.) Answer to an amended complaint
a. if as a matter of right
b. if as a matter of judicial discretion
4.) Answer to counterclaim or cross-claim
15 days
10 days
10 days
5.) Answer to third (fourth, etc.) party complaint
15 days
6.) Reply
10 days
7.) Answer to supplemental complaint
10 days
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Rule 12
movant may be deprived of the opportunity to submit an
intelligent responsive pleading.
BILL OF PARTICULARS
When not proper
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)
1)
Since the purpose of the motion for bill of particulars is
to allow the movant to properly prepare his own
pleading, it would be erroneous for the motion to ask
the court to order the adverse party to disclose or to set
forth in his pleading the evidences relied upon for his
cause of action or defense. These are matters obtainable
by the various modes of discovery. Besides under Sec. 1
of Rule 8, pleadings are meant to contain only a direct
statement of the ultimate facts which constitute the
party’s claims or defenses. Matters of evidentiary facts
are to be omitted.
2)
It would likewise not be proper for a motion for a bill of
particulars to call for the production of the particulars
constituting malice, intent, knowledge, or condition of
the mind which, under Sec. 5 Rule 8, may be averred
generally. To require a pleader to do so would be to
require the statement of evidentiary facts in a pleading.
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)
It would not however, be incorrect to move for a bill of
particulars to require the averment of the particular
circumstances of fraud or mistake. Under Sec. 5 Rule 8,
such matters must be alleged with particularity.
When filed
3)
The motion shall be filed before responding to a pleading. Hence, it
must be filed within the period granted by the Rules (R11) for the
filing of a responsive pleading.
A motion for bill of particulars to require a pleader to set
forth matters showing the jurisdiction of the court to
render its judgment is not proper. The provisions of Sec.
6 Rule 8 are clear: In pleading a judgment it is sufficient
to aver the same generally.
The motion shall point out:
1.
2.
3.
In Republic vs. Sandiganbayan 540 SCRA 431, the Court ruled that
an allegation that the “defendant acted” ‘in unlawful concert’ with
the other defendant in illegally amassing assets, property and funds
in amounts disproportionate to the latter’s income”, is a proper
subject of a motion for bill of particulars. Plaintiff is bound to clarify
the specific nature, manner and extent of the alleged collaboration
between the defendants. The allegation in the complaint does not
actually state the ultimate facts to show the alleged “unlawful
concert”. Allegations couched in general terms are not statements
of ultimate facts.
The defects complained of;
The paragraphs wherein they are contained; and
The details desired.
The motion must comply with the requirements for motions under
Secs 4, 5, and 6 of R 15. Otherwise the motion will not suspend the
period to answer (Filipino Fabricator vs. Magsino, GR No. 47574,
Jan. 29, 1988).
Purpose: To aid in the preparation of a responsive pleading
An action cannot be dismissed on the ground that the complaint is
vague or indefinite. The remedy of the defendant is to move for a
bill of particulars or avail of the proper mode of discovery. (Galeon
vs. Galeon GR No. L-30380, Feb. 28, 1973)
The purpose of the motion is to seek an order from which court
directing the pleader to submit a bill of particulars which avers
matters with “sufficient definiteness or particularity” to enable the
movant to prepare his responsive pleading (Sec. 1), not to enable
the movant to prepare for trial. Where the purpose of the movant
is to enable him to prepare for trial, the appropriate remedy is to
avail of the discovery procedures from Rules 23 to 29 and even of a
pre-trial under Rule 18.
Necessary that complaint states a cause of action
As long as the allegations of a complaint make out a cause of
action, the ambiguity in some allegations of the complaint or the
failure to allege facts with sufficient particularity does not justify
the filing of a motion to dismiss. The proper remedy is to file a
motion for a bill of particulars.
In less technical terms, a function of a bill of particulars is to clarify
the allegations in the pleading so an adverse party may be
informed with certainty of the exact character of a cause of action
or a defense. Without the clarifications sought by the motion, the
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To which pleadings directed
“Its primary objective is to apprise the adverse party of what
the plaintiff wants — to preclude the latter from springing a
surprise attack later.”
It must be made clear that a motion for a bill of particulars is not
directed only to a complaint. It is a motion that applies to any
pleading which in the perception of the movant contains
ambiguous allegations.
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, 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 makes 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.
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.
Q: So what is your remedy?
Now, we will go to a specific situation and let’s find out whether
the defendant could file for a bill of particulars.
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.
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.”
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
defects and ask for the details, because how can he prepare an
answer if he does not understand the complaint?
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.
BAR QUESTION: Suppose a complaint is ambiguous, uncertain,
indefinite or vague, can the defendant file a motion to dismiss?
So, what is sought to be remedied are vague and ambiguous
statements of ultimate facts. But you cannot use it to fish for
evidentiary matters. Evidentiary facts cannot be the subject of a
motion for a bill of particulars.
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)
Q: But is it not fair that before trial I should know your evidentiary
matters?
According to the SC in the case of
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.
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.”
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
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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?”
prepare for trial. The motion shall specify the
alleged defects of the complaint or information
and the details desired. (10a)
Q: Now, is the motion for a bill of particulars meritorious?
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.
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 stated with particularity. x x x
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.
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?
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.
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.
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!]
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.
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, every pleading which is vague the other party can always
compel you to make it clearer.
Q: Is this remedy available in criminal cases?
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.
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.
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.
There is an identical provision in Rule 116, Section 9 of the Rules on
Criminal Procedure.
In what way? A complaint is filed but even if the allegations are
clear he will file a motion for bill of particulars claiming that he
cannot understand. Then, he will set the motion for hearing 2
weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
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
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the defendant has succeeded in delaying the period for filing an
answer by pretending that he cannot understand.
a)
b)
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.
2)
If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered by
the court (R 12, Sec. 4; R 17, Sec. 3);
3)
If defendant fails to obey, his answer will be stricken off
and his counterclaim dismissed, and he will be declared
in default upon motion of the plaintiff (R 12, Sec. 4; R 17,
Sec. 4; R 9, Sec. 3)
Action of the court
Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter has three
possible options, namely,
a)
b)
c)
may order the striking out of the pleading or the
portion thereof to which the order is directed; or
make such order as it may deem just.
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?
to deny the motion outright,
to grant the motion outright, or
to hold a hearing on the motion.
A: The court may order the striking out of the pleading or portions
thereof which is the object of the bill of particulars. Like, when you
do not want to clarify your complaint, the judge 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. 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)
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: 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?
Effects of Motion
A: There are two (2) ways:
1.)
2.)
Period to comply with the order granting the motion - 10 days from
notice of order unless a different period is fixed by the court.
The Bill of Particulars may be filed either in a separate or in an
amended pleading serving a copy thereof to the adverse party.
If the motion is granted, in whole or in part, the movant
can wait until the bill of particulars is served on him by
the opposing party and then he will have the balance of
the reglementary period within which to file his
responsive pleading; and
2)
If his motion is denied, he will still have such balance of
the reglementary period to file his responsive pleading,
counted from service of the order denying his motion.
Note: In either case he shall have no less than 5 days to file his
responsive pleading.
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)
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I
filed a motion for a bill of particulars. 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
7 days to go because the period during which your motion was
pending will not be counted as the 15 day period was interrupted.
Effect of Non-Compliance
1)
1)
Just submit the details of the vague paragraphs; or
Amend the whole pleading and clarify the vague
paragraphs
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?
If the order is not obeyed or in case of insufficient
compliance, therewith, the court:
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A: Five (5) days. You are guaranteed a minimum of 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 lapsed. 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)
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.
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Rule 13
Service upon the parties’ counsel of record is tantamount to service
upon the parties themselves, but service upon the parties
themselves is not considered service upon their lawyers. The
reason is simple – the parties, generally, have no formal education
or knowledge of the rules of procedure, specifically, the mechanics
of an appeal or availment of legal remedies; thus, they may also be
unaware of the rights and duties of a litigant relative to the receipt
of a decision. More importantly, it is best for the courts to deal only
with one person in the interest of orderly procedure – either the
lawyer retained by the party or the party himself if he does not
intend to hire a lawyer (De los Santos vs. Elizalde GR 141810 &
141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier
Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
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)
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.
There was 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.
What is the difference between filing and service of pleadings?
Section 2:
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.
Sec. 2. Filing and service, defined. Filing is the
act of presenting the pleading or other paper
to the clerk of court.
Example is in the case of
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)
RETONI, JR. vs. CA – 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
doe,s 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
When you say FILING, you present the pleading or other papers to
the office of the clerk of court. When you say SERVICE, you furnish a
copy of the pleading or paper concerned to a party, or if he is
represented by a lawyer, you must furnish a copy of the pleading to
the lawyer.
BAYOG vs. NATINO – 258 SCRA 378 [1996]
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 and the party, unless the court orders direct service to
the party.
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.”
If a party has not appeared by counsel, then common reason
suggests that service must be made upon him.
It has been held that notice or service made upon a party who is
represented by counsel is a nullity. As a rule, notice to the client
and not to his counsel of record is not notice in law unless for
instance when the court or tribunal orders service upon the party
or when the technical defect in the manner of notice is waived
(Heirs of Benjamin Mendoza vs CA GR 170247, September 17,
2008).
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?
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1)
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.
2)
Personal by presenting the original copy of the pleading,
notice, appearance, motion, order or judgment,
personally to the clerk of court; or
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.
Q: Suppose you are represented by three or more lawyers should
every lawyer be served a copy?
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 served with
summons.
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.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Second Mode of Filing: FILING BY REGISTERED MAIL
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)
The other mode is by registered mail. It is not ordinary mail. It is
filing through the registry service and made by depositing the
pleading in the post office and not through any other means of
transmission.
If a private carrier is availed of by the party, the date of actual
receipt by the court of such pleading and not the date of delivery to
the private carrier, is deemed to be the date of the filing of that
pleading (Benguet Electric Cooperative Inc. vs. NLRC, GR No. 89070
May 18, 1992)
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.
Now, judgments. It must be filed. Why will the court file its own
judgment before itself? Actually, the judge has to file his decision
before the court. Read Rule 36, Section 1:
Q: Now, suppose I will file my pleading not by registered mail but
through 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?
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)
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
So, the judge has to file his own decision to make it official.
Under Section 3, there are two (2) modes of filing – either
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INDUSTRIAL TIMBER CORP. vs. NLRC – 233 SCRA 597 [1994]
c.
with instructions to the postmaster to return the mail to
the sender after 10 days if undelivered.
It must be stressed that the affidavit is very important.
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.”
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)
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?
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…. Why subsequent’?
Meaning, answer, counterclaim, cross-claim.
A: Section 12. This is a new rule on how to prove that a pleading is
filed –
Q: Do you mean to tell me the complaint does not have to be
served to the defendant by the plaintiff?
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)
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,
with respect to pleadings, motions, etc., you file and serve because
there must be proof of service to the adverse party.
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: 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?
Q: How do you SERVE a pleading to the opposite party?
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.
A: Either:
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?
1)
2)
3)
A: Prove it by presenting the registry receipt and the affidavit of
the server,
a.
b.
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 paid and
personally (Sec. 6)or
by mail (Sec. 7); or
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
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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)
(b) by leaving the papers in his office with his clerk or a
person having charge thereof. If no person is found in
the office, or his office is not known or he has no office,
(c)
then by leaving a copy of the papers at the party’s or
counsel’s residence, if known, with a person of sufficient
age and discretion residing therein between eight in the
morning and six in the evening. (Sec. 6)
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC – 128 SCRA 402 [1984]
Personal service under Section 6 is the preferred mode of service
(Sec. 11; Uy vs. Medina 342 SCRA 393).
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.
If another mode is used, the service must be accompanied by a
written explanation why the service or filing was not done
personally. Exempt from his explanation are papers emanating
from the court. A violation of this explanation requirement may be
cause for the paper to be considered as not having been filed.
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.
In Marinduque Mining and Industrial Corporation, GR 161219,
October 6, 2008, petitioners maintain that the trial court should
have considered the notice of appeal as not filed at all because
respondent (NAPOCOR) failed to comply with the rule under Sec.
11 requiring that the service and filing of pleadings and other
papers shall be done personally. On the other hand, respondent
argues that the rules allow resort to other modes of service and
filing as long as the pleading was accompanied by a written
explanation why service or filing was not done personally.
Respondent maintains that it complied with the rules because the
notice of appeal contained an explanation why it resorted to
service and filing by registered mail – due to lack of manpower to
effect personal service.
“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.”
The Court held:
But the case of PLDT should not be confused with what happened
in the case of
“Under Sec. 11, Rule 13 of the Rules, personal service of pleadings
and other papers is the general rule while resort to the other
modes of service and filing is the exception. When recourse is
made to the other modes, a written explanation why service or
filing was not done personally becomes indispensable. If no
explanation is offered to justify resorting to the other modes, the
discretionary power of the court to expunge the pleading comes
into play.
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.
In this case, NAPOCOR complied with the Rules. NAPOCOR’s notice
of appeal was served and filed by registered mail – due to lack of
manpower to effect personal service. This explanation is acceptable
for it satisfactorily shows why personal service was not practicable.
(Citing Solar Team Entertainment, Inc. vs. Ricafort, 355 Phil. 404;
Public Estates Authority vs. Caoibes, 371 Phil. 688).
Now, when a decision against PCI Bank was served, the lawyer
claimed they are not bound because there was no proper
service.
How are pleadings served personally?
ISSUE: Was there proper service?
Personal service is made by:
HELD: While is true that the service was improper, but the
trouble is, it was going on for some time and you are not
(a)
delivering a copy of the papers served personally to the
party or his counsel, or
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complaining. So, the ground floor becomes your adopted
address.
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)
“They cannot now disown this adopted address 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.
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.”
In one case, service of the COA resolution was made to the resident
corporate auditor of the petitioner DBP. The auditor holds office in
the premises of petitioner DBP and is actually an employee of the
COA assigned to DBP by COA.
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), 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.
Respondent COA contends that the service of the COA resolution to
petitioner’s resident corporate auditor is tantamount to a service
upon the petitioner itself. Petitioner, on the other hand, argues
that the resident corporate auditor is not its employee but that of
the respondent.
The SC agreed with the contention of the DBP that the resident
corporate auditor of the DBP is neither an official nor an employee
of the DBP. He does not come within the definition of “clerk or
person having charge” of the office that may be validly served with
a copy of the resolution of the respondent as contemplated by the
Rules. In fact, the resident corporate auditor is an extension of the
respondent COA and no department of the petitioner was actually
served with a copy of the resolution. (DBP v.COA GR 166933 August
10, 2006).
Q: Now, when is service by mail deemed complete?
A: Section 10:
Sec. 10. Completeness of service. xxxxxx
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,xxx
Q: So, when is personal service complete?
A: It is completed upon actual delivery.
a)
b)
By handling a copy to defendant; or
tendering him a copy if he refuses.
Note: 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.
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)
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
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
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court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery. (6a)
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
This mode is availed of only when there is failure to effect service
personally or by mail. This failure occurs when the office and
residence of the party or counsel is unknown (Sec. 8).
a)
b)
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.
Substituted service is effected by delivering the copy to the clerk of
court, with proof of failure of both personal service and service by
mail (Sec. 8).
How to prove service
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.
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 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)
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.
Q: How do you prove that you furnished the opposing lawyer a
copy by PERSONAL SERVICE?
SERVICE OF DECISIONS, ORDERS, ETC.
A: It is
a)
b)
c)
the affidavit of the mailer and
the registry receipt issued by the mailing office.
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)
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 for judgments,
orders, etc., from the court.
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
There are three (3) modes again of serving court orders or
judgments to parties:
Counsel of Plaintiff
1)
2)
3)
Q: If it is by ORDINARY MAIL, how do you prove in court that you
served a copy?
personally;
registered mail; or
service by publication, if a party is summoned by
publication and has failed to appear in the action.
Note: No substituted service
A: If it is ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with Section 7.
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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.
practicable, the service and filing of pleadings and other papers
shall be done personally EXCEPT WITH RESPECT TO PAPERS
EMANATING FROM THE COURT.”
So the court is not obliged to give any explanation, only the parties
and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORT – 293 SCRA 661
[August 5, 1998]
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.
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.
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)
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.”
That is a radical provision. In other words, there are two (2) ways of
service and filing: 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.
“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.”
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..
EXAMPLE: the opposing counsel is in Manila, and the case is in
Davao. He will mail to you the pleading or motion and then, include
the following: “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.
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 holding office just across the street and he will
send a motion to be received today. Instead of serving you, he will
mail it. 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.
“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.’”
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
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“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.”
“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.”
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 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)
“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.”
This has been discussed already.
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.
“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.”
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. CA – 201 SCRA 768
[1991]
“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.”
FACTS: The CA served 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?
“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.”
HELD: There is NO constructive service because there is no
certification by the postmaster that is claimed. This is what
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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.
(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.”
“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.”
“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.”
“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.”
“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.”
The case of JOHNSON was reiterated in
SANTOS vs. CA – 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.
This last section, Section 14, has something to do with real actions,
land titles – notice of lis pendens.
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.
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
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.
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
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;
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protect the rights of the party who caused it
to be recorded. (24a, R14)
Now, as GENERAL RULE, the one who registers a notice of lis
pendens is the plaintiff.
This used to be in Rule 14 of the 1964 Rules of Court where it was
misplaced. I do not 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.
Exception:
NOTICE OF LIS PENDENS is a notice of pending action or litigation
between the parties involving title to or right of possession over
real property.
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.
Q: Under Section 14, can the defendant register a notice of lis
pendens?
Requisites:
1)
2)
3)
4)
Action affects the title or the right of possession of a real
property;
Affirmative relief is claimed;
Notice shall contain the name of the parties and the
object of the action or defense and a description of the
property affected thereby; and
Action in rem (AFP Mutual Benefit Association, Inc. vs.
CA GR No. 104769, March 3, 2000)
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.
This serves as a warning to all persons that a particular real
property is in litigation, and that one who acquires an interest over
said property does so at his own risk, or that he gambles on the
result of the litigation over said property (Lee Tek Sheng vs. CA, GR
No. 115402, July 15, 1998)
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
It may involve actions that deal not only with the title or possession
of a real property, but even with the use or occupation thereof.
(Ake hernudd, Gosta Jansbo, Hans ryngelsson, Peter Lofgren and
Jordana Holdings Corporation, for itself and on behalf of San Remo
Development Corp. Inc., vs. Lars E. Lofgren, Liza Salcedo-Lofgren,
Leosyl Salcedo and San Remo Development, Inc., GR No. 140337,
Sept. 27, 2007).
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.
The defendant may also record a notice of lis pen dens when he
claims an affirmative relief in the answer.
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 on the
outcome of the case. He cannot claim he is the mortgagee or buyer
in good faith because there is a notice.
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.”
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.
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Rule 14
jurisdiction over the person of the defendant (Haban vs. Vamenta,
33 SCRpersonal
SUMMONS
Effect of Non-Service
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)
Unless the defendant voluntarily submits to the jurisdiction of the
court, non-service or irregular service of summons renders null and
void all subsequent proceedings and issuances in the action from
the order of default up to and including the judgment by default
and the order of execution.
Summons is the writ by which the defendant is notified of the
action brought against him (Cano-Gutierrez vs. Gutierrez, 341
SCRA 670; Guanzon vs. Arradaza 510 SCRA 309).
The non-service or invalidity of service of summons may be a
ground for dismissal for lack of jurisdiction over the person of the
defending party.
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.
Note: Where the defendant has already been served with
summons on the original complaint, no further summons is
required on the amended complaint if it does not introduce new
causes of action. (Ong Peng vs. Custodio, GR No. 14911, March 25,
1961)
The issuance of summons is not discretionary on the part of the
court or the clerk of court but is a mandatory requirement. Section
1 directs that the clerk of court shall issue the corresponding
summons to the defendant upon
But where the defendant was declared in default on the original
complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on the
amended complaint as the original complaint was deemed
withdrawn upon such amendment (Atkins vs. Domingo GR No. L19565, March 24, 1923)
(a) the filing of the complaint, and
(b) the payment of the requisite legal fees.
The use of the term “shall” leaves no doubt as to the mandatory
character of service of summons.
General Rule: When an additional defendant is joined, summons
must be served upon him.
Purpose of summons
Exceptions:
Jurisdiction over the person of the defendant in a civil case is
acquired either by his voluntary appearance or service of summons
upon him (Minucher vs. CA GR No. 142963, Feb. 11, 2003)
1.
2.
In actions in personam
3.
In action in personam, the purpose of summons is not only
a)
b)
When the administrator of a deceased party defendant
substitutes the deceased;
Where upon the death of the original defendant his heirs
are made parties; and
In cases of substitution of the deceased under Sec. 16 R
3)
Note: In these instances, the service of the order of substitution is
sufficient.
to notify the defendant of the action against him
but also to acquire jurisdiction over his person
(Umandap vs. Sabio, Jr. 339 SCRA 243).
In actions in rem or quasi in rem
The mere filing of the complaint does not enable the court to
acquire jurisdiction over the person of the defendant. By the filing
of the complaint and the payment of the required filing and docket
fees, the court acquires jurisdiction only over the person of the
plaintiff, not over the person of the defendant. Acquisition of
jurisdiction over the latter is accomplished by a valid service of
summons upon him assuming he does not make a prior voluntary
appearance in the action. Service of summons logically follows the
filing of the complaint.
In an action in rem or quasi in rem, jurisdiction over the defendant
is not mandatory and the court acquires jurisdiction over an action
as long as it acquires jurisdiction over the res. The purpose of
summons in these actions is not the acquisition of jurisdiction over
the defendant but mainly to satisfy the constitutional requirements
of due process (Gomez vs. CA 420 SCRA 98; Biaco vs. Phil.
Countryside Rural Bank 515 SCRA 106; PCI Bank v. Alejandro 533
SCRA 738).
Uniformity of the rules on summons
Service of summons is required even if the defendant is aware of
the filing of the action against him. His knowledge of the existence
of a case is not one of the modes by which a court acquired
The rules on summons apply with equal force in actions before the
RTC and first level courts. This is because the procedure in the first
level shall be the same as in the second level except (a) where a
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particular provision expressly or impliedly applies only to either of
said courts, or (b) in civil cases governed by the Rules on Summary
Procedure (Sec. 1, Rule 5).
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)
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:
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?
(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.
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 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)
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.
Service of summons without copy of the complaint
Is the defendant bound to comply with the summons where service
was made without attaching a copy of the complaint?
In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was served
summons but without a copy of the complaint. She did not appear
and file her answer as ordered. The trial court then issued an order
declaring her in default. A principal issue raised in the SC was
whether or not the proceedings in the trial court should be
annulled on the ground that the defendant had never been
summoned pursuant to the Rules because she was not served a
copy of the complaint.
The SC, while admitting that the service of summons was defective,
treated the defect as having been waived by the defendant’s failure
to seasonably challenge the trial court’s jurisdiction over her
person. She should have appeared to challenge the jurisdiction of
the court.
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?
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: 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.
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 the defendant has already filed an answer to the
original complaint and after that there is an amended complaint,
what must the plaintiff do?
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: This time, there is 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
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copy of the amended complaint with a copy of the order admitting
the filing of the amended complaint.
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.
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?
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.
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:
Q: When summons is served, 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?
PAN ASIATIC TRAVEL CORP. vs. CA – 164 SCRA 623
A: In the case of
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.
LAUS vs. COURT OF APPEALS – 214 SCRA 688
HELD: The service of summons 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. 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)
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)
Q: Who can serve summons? Who are authorized by law to serve
summons?
A: Under Section 3, the following:
1)
2)
3)
4)
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.
Sheriff;
Deputy sheriff;
Other proper court officer (court employees); or
For justifiable reasons, by any suitable person authorized
by the court issuing the summons.
Note: The enumeration is exclusive
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.”
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.
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 summons. That is what you call the Sheriff’s
Return under Section 4, Rule 14.
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.
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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.
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)
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)
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.
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. 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. It will
then be the problem of the plaintiff and his lawyer to locate the
new address of the defendant or counsel and file said motion.
The summons must be served in person. This is literal, the
summons must be served upon the defendant himself not to
anybody else.
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.
Alias summons is one issued when the original has not produced its
effects because of a defect in form or in the manner of service, and
when issued supersedes the first writ.
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.
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: Now suppose, normally, you give the copy and you ask him to
sign the original summons but he refuses, what will I do?
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.
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 of laymen is if it is not received then there
is no proper service. No, that is of course false. You cannot defeat
a court process by refusing to accept it. And under the law, from
that moment, you are bound.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL
DEFENDANTS:
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. To avoid
confusion, 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. Service in person on the
defendant.
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)
2)
3)
Section 6 – Service in person on defendant;
Section 7 – Substituted service (Section 7); and
Sections 14, 15, 16 – Service by publication;
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Service of summons in actions in personam / Service in person
preferred
2.)
In an action strictly in personam, service in person on the
defendant is the preferred mode of service (Hamilton vs. Levy 344
SCRA 821). This is done by handing a copy thereof to the defendant
in person. If he refuses to receive and sign for it, the remedy of the
server is to tender the summons to the defendant. If the defendant
refuses the service, the server should not resort to substituted
service immediately. He must “tender” the summons to him.
Tender of summons is not a separate mode of service. It is a part of
service in person.
But note the condition: “If, for justifiable causes, the defendant
cannot be served within reasonable time as provided in the
preceding section xxx.”
So, if the server cannot serve you the summons personally,
because he cannot find you despite several attempts, then he can
served it on your wife or child, who is around, or the housemaid or
houseboy, provided they are of suitable age and discretion.
For substituted service of summons to be valid, it is necessary to
establish the following:
Substituted service when proper
If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 be availed of.
The sheriff or server must first exert all efforts to serve the
defendant in person. If this effort fails, then substituted service can
be made. This effort must be stated in the proof of service. This is
required because substituted service is in derogation of the usual
mode of service (Laus vs. CA 219 SCRA 688; Umandap vs. Sabio, Jr.
339 SCRA 243; Samartino vs. Raon 383 SCRA 66; Hamilton vs. Levy
344 SCRA 821.
Second Mode: SUBSTITUTED SERVICE (Section 7)
1)
The impossibility of the personal service of summons
within a reasonable time;
2)
The efforts exerted to locate the person to be served;
and
3)
Service upon a person of sufficient age and discretion
residing in the same place as defendant or some
competent person in charge of his office or regular place
of business.
In substituted service, the sheriff's return must show that an effort
or attempt was exerted to personally serve the summons on the
defendant and that the same failed. (Sps. Venturanza vs. CA GR.
No. 77760, Dedc. 11, 1987)
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)
Within a reasonable time has been interpreted to contemplate a
period of time longer than that demarcated by the word “prompt”
and presupposes that a prior attempt at personal service had failed
(Laus vs. CA 219 SCRA 688).
The case of Manotoc vs. CA 499 SCRA 21, is more specific:
“….Reasonable time is defined as so much time as is necessary
under the circumstances for a reasonably prudent and diligent man
to do, conveniently, what the contract or duty requires that should
be done….Under the Rules, the service of summons has no set
period….Since the defendant is expected to try to avoid and evade
service of summons, the sheriff must be resourceful, persevering,
canny, and diligent in serving the process on the defendant.” For
substituted service to be available there must be several attempts
by the sheriff to personally serve the summons within a reasonable
period…”Several attempts” means at least three (3) tries,
preferably on at least two different dates. In addition the sheriff
must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.
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. What is important is it is served in person.
But if you want resort to substituted service under Section 7), you
better have to do it by leaving copies of the summons:
1.)
in his office or regular place of business with some
competent person in charge thereof, like the manager or
the foreman.
“The Sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service (citing
Domagas vs. Jensen, 448 SCRA 663). The efforts made to find the
defendant and the reason behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts
on personal service, the inquiries made to locate the defendant,
at the defendant’s residence with some person of
suitable age and discretion residing therein; or
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the name/s of the alleged occupants of the alleged residence or
house of the defendant and all other acts done, though futile, to
serve the summons on the defendant must be specified in the
Return to justify substituted service….”
Effect when substituted service is valid but defendant failed to
actually receive summons
Where the substituted service has been validly served, its validity is
not affected by the defendant’s failure to actually receive the
summons from the person with whom the summons had been left.
It is immaterial that the defendant does not in fact receive actual
notice. The rule does not require the sheriff or any authorized
server to verify that the summons left in the defendant’s residence
or office was actually delivered to the defendant (Montalban vs.
Maximo, supra).
A mere general claim or statement in the Sheriff’s Return that the
server had made “several attempts” to serve the summons,
without making reference to the details of facts and circumstances
surrounding such attempts, does not comply with the rules on
substituted service (Manotoc vs. CA, supra). A Return which merely
states the alleged whereabouts of the defendants without
indicating that such information was verified and without
specifying the efforts exerted to serve the summons is not enough
for compliance. So is a mere general statement that such efforts
were made (Jose vs. Boyon 414 SCRA 216).
The proof of service of summons must
(a)
“A person of suitable age and discretion” defined
indicate the impossibility of service of summons within a
reasonable time;
(b) specify the efforts exerted to locate the defendant; and
“A person of suitable age and discretion is one who has attained
the full age of full legal capacity (18 years old) and is considered to
have enough discernment to understand the importance of
summons. The Manotoc case explains:
(c)
state that the summons was served upon a person of
sufficient age and discretion who is residing in the
address, or who is in charge of the officer or regular
place of business of the defendant.
It is likewise required that the pertinent facts proving these
circumstances be stated in the proof of service or in the officer’s
return. The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the service
of summons ineffective (Jose vs. Bayon 414 SCRA 216; Miranda vs.
CA 326 SCRA 278).
“Discretion is defined as the ability to make decisions which
represent a responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed. Thus, to be of
sufficient age and discretion, such person must know how to read
and understand English to comprehend the import of the
summons, and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible time for the
person to take appropriate action. Thus, the person must have a
‘relation of confidence’ to the defendant, ensuring that the latter
would receive or at least be notified of the receipt of summons.
The sheriff must therefore, determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the
recipient’s relationship with the defendant is, and whether said
person comprehends the significance of the receipt of the
summons and his duty to deliver it to the defendant or at least
notify the defendant of said receipt of summons. These matters
must be clearly and specifically described in the Return of
Summons.”
Service of summons to resident defendant but temporarily out –
Substituted service in addition to service by publication under
Section 16 in relation to Sec. 15
In a suit in personam against a resident of the Philippines
temporarily absent from the country, the defendant may be served
by substituted service because a man temporarily out of the
country leaves a definite place of residence or a dwelling where he
is bound to return. He also leaves his affairs to someone who
protects his interests and communicates with him on matters
affecting his affairs or business (Montalban vs. Maximo 22 SCRA
1070; Valmonte vs. CA 252 SCRA 92).
“A competent person in charge of the office or regular place of
business” defined
If the defendant is out of the country, he cannot be expectedly
served within a reasonable time. The fact that “for justifiable
causes, the defendant cannot be served within a reasonable time,”
constitutes the operative fact that triggers the application of
substituted service. This mode of service in the case of a resident
temporarily absent from the country is, of course, in addition to the
summons by publication authorized by Sec. 16 in relation to Sec. 15
of this Rule.
“A competent person in charge of the office or regular place of
business” must be the one managing the office or business of
defendant, such as the president or manager; and such individual
must have sufficient knowledge to understand the obligation of the
defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. Again, the details
must be contained in the Return (Manotoc vs. CA)
An ineffective substituted service has certain adverse effects. First,
the period to file a motion to dismiss for lack of jurisdiction over
the defendant’s person does not commence to run since the court
has no jurisdiction to adjudicate the controversy as to him, unless
he voluntarily submits to the jurisdiction of the court (Laus vs. CA
It is not necessary that the person in charge of the defendant’s
regular place of business be specifically authorized to receive the
summons. It is enough that he appears to be in charge (Guanzon v.
Arradaza 510 SCRA 309).
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219 SCRA 688). Second, the trial court does not acquire jurisdiction
over the person of the defendant (Laus vs.CA 219 SCRA 688;
Litonjua vs. CA 80 SCRA 246).
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.
When defendant prevents service of summons
What if diligent efforts were undertaken by the Sheriff to serve
summons upon the defendant but he was prevented from effecting
such service by the defendant himself?
Q: So what is the condition?
In one case, the Sheriff was forced to serve the summons upon the
subdivision security guard because he was refused entry therein
upon instruction of the defendant.
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 if the wife says,
“come back tomorrow,” so you have to come back tomorrow and
you cannot yet serve substituted service of summons.
The SC ruled:
“We have ruled that the statutory requirements of substituted
service must be followed strictly, faithfully, and fully and any
substituted service other than that authorized by the Rules is
considered ineffective (Paluwagan ng Bayan Savings Bank vs. King
GR 78252, April 12, 1989, 172 SCRA 60). However, we frown upon
an overly strict application of the Rules. It is the spirit, rather than
the letter of the procedural rules, that governs.
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)
“In his Return, the sheriff declared that he was refused entry by the
security guard in the subdivision. The latter informed him that
petitioner prohibits him from allowing anybody to proceed to her
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the sheriff’s
declaration. Nor did she deny having received the summons
through the security guard.
MAPA vs. CA – 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.
“Considering her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial court that
summons has been properly served upon petitioner and that it has
acquired jurisdiction over her.
“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.”
The summons was therefore, properly served” (Robinson vs.
Miralles 510 SCRA 678).
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.
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.
[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]
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
TOYOTA CUBAO INC. vs. CA – 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
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take cognizance of the litigation before it. Compliance
therewith must appear affirmatively in the return. It must be
so 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.”
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.
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]
AND SERVICE OF SUMMONS [RULE 14]
So, there is a difference in meaning. Substituted service of
summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Now, do not confuse substituted service of summons under Rule 14
with substituted service of pleadings, orders and other papers
under Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION :
(Sections 14, 15, and 16)
Let us read Section 6, Rule 13:
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
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)
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)
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).
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.
Now, what is substituted service in Rule 13? Let us go back to
Section 8, Rule 13.
As a rule summons by publication is available only in actions in rem
or quasi in rem. It is not available as a means of acquiring
jurisdiction over the person of the defendant in an action in
personam.
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)
Against a resident, the recognized mode of service is service in
person on the defendant under Sec. 6. In a case where the
defendant cannot be served within a reasonable time, substituted
service will apply (Sec. 7), but not summons by publication which is
permissible however, under the conditions set forth in Sec. 14
(where the identity or whereabouts of the defendant are unknown)
and in Section 16 (when the defendant is a resident temporarily
out of the Philippines).
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.
Against a non-resident, jurisdiction is acquired over the defendant
by service upon his person while said defendant is within the
Philippines. As once held, when the defendant is a non-resident,
personal service of summons in the state is essential to the
acquisition of jurisdiction over him (Banco de Brasil vs. CA 333
SCRA 545). This is in fact the only way of acquiring jurisdiction over
his person if he does not voluntarily appear in the action. Summons
by publication against a non-resident in an action in personam is
not a proper mode of service.
But in Rule 13, substituted service of other pleadings, judgments,
orders, etc., if personal service or service by registered mail have
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Publication is a notice to the whole world that the proceeding has
for its object to bar indefinitely all who might be minded to make
an objection of any sort against the right sought to be established.
It is the publication of such notice that brings in the whole world as
a party in the case and vests the court with jurisdiction to hear and
decide it (Cynthia Alaban vs. CA 470 SCRA 697). Publication is
likewise not a mode of service in an action in personam against a
defendant except under certain situations (Sections 14 and 16).
“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.
Q: What are the instances where a defendant may be served with
summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
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.
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 but his
whereabouts are not known. But definitely, he is in the Philippines.
That is the important condition. So, let us read Section 14:
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.
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)
Q: Now what kind of an action is an action to collect an unpaid loan
where the defendant cannot be located anymore?
Under this provision, service of summons is allowed:
1)
2)
A: That is an action in personam.
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
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
where the defendant is known but his whereabouts are
unknown and cannot be ascertained by diligent inquiry.
FONTANILLA vs. DOMINGUEZ – 73 Phil. 579
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.
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.
So if we will follow this case what will be our answer? YES, because
it is allowed in any action without distinction.
Section 14 allows service of summons by publication, if the
whereabouts of the defendant is unknown, after diligent inquiry
and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales vs.
CA, GR No. 150908, Jan. 21, 2005)
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
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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.
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.
“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.
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?
CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA – 38
SCRA 369
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)
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..
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:
“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.
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.”
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.]
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.
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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.
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.”
Foregoing distinctions no longer applicable
Summons by way of publication may with leave of court be
availed of where a defendant involved in any action (in rem,
quasi in rem and in personal) is designated as an unknown
owner or whenever his whereabouts are unknown and cannot
be ascertained. The summons shall be effected through
publication in a newspaper of general circulation and in such
places and for such time as the court sets.
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.
In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the
Supreme Court held that the in rem/in personal distinction
was significant under the old rule because it was silent as to
the kind of action to which the rule was applicable. Because of
this silence, the court limited the application of the old rule to
in rem actions only. This has been changed. The present rule
expressly states that it applied to any action where the
defendant is designated as unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now applies to any
action, whether in personal, in rem or quasi in rem.
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.
If property is attached and later the defendant appears (and
voluntarily submits to the jurisdiction of the court), the case
becomes mainly a suit in personam ( Villareal vs. CA GR No.
107314, Sept. 17, 1998)
SERVICE BY PUBLICATION UNDER SECTION 15
(Extraterritorial Service)
So, let us wait for the proper case at the right time to find what is
the intention of the phrase “in any action.”
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:
BALTAZAR vs. CA – 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
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:
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.
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.
“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
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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: 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:
A: This is answered by Section 15:
1.)
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)
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.
Extraterritorial service of summons under this Section 15 applies
when he following requisites concur:
It must be noted that extra-territorial service of summons or
summons by publication applies only when the action is in rem or
quasi in rem. The first is an action against the thing itself instead of
against the defendant's person; in the latter, an individual is named
as defendant and the purpose is to subject the individual's interest
in a piece of property to the obligation or loan burdening it. An
action for specific performance is an action in personam, hence
summons by publication is improper. (Sps. Jose vs. Sps. Boyon, GR
No. 147369, Oct. 23, 2003).
(a) the defendant is a non-resident;
(b) he is not found in the Philippines; and
(c) the action against him is either in rem or quasi in rem
(Jose vs. Boyon 414 SCRA 216).
A fundamental concept to be remembered in extraterritorial
service of summons is that it does not apply to a defendant who is
a resident of the Philippines. It does not also apply to an action in
personam (Kawasaki Port Service Corporation vs. Amores 199 SCRA
230; Banco do Brasil vs. CA 333 SCRA 545 [2000]) .
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.
The possible exception to this rule is provided for under Sec. 16
(residents temporarily out of the Philippines) where service may,
by leave of court, be effected out of the Philippines as under the
preceding section.” The preceding section is Section 15. Note also
that Sec. 16 refers to “any action”, hence, either in rem or in
personam.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15?
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: Service may, with leave of court, be effected in the Philippines:
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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
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.
c.)
In any other manner the court may deem sufficient.
(Carriaga vs. Malaya, 143 SCRA 441)
So, aside from publication, another copy will be sent by registered
mail to his last known address.
SAHAGUN vs. CA – 198 SCRA 44
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.
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.
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.
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.
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 it 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’.
Riano’s commentaries
The personal service using the procedure in Sec. 6 will not have the
effect of acquiring jurisdiction over the non-resident defendant
even if the summons and the copy of the complaint are personally
served and received by him in the country where he may be found.
This is because of the rule that a non-resident defendant who
refuses to come to the country voluntarily remains beyond the
personal processes of the court which therefore, cannot acquire
jurisdiction over him (Banco Espanol-Filipino vs. Palanca 37 Phil.
921; Perkins vs. Dizon 69 Phil. 186). Besides in a proceeding in rem
or quasi in rem, jurisdiction over the person of the defendant is not
a prerequisite to confer jurisdiction on the court provided that the
court acquires jurisdiction over the res. Nevertheless, summons is
served upon the defendant not for the purpose of vesting the court
with jurisdiction over the person of the defendant but merely for
satisfying the due process requirement (Asiavest Limited vs. CA 296
SCRA 539). Compliance with due process is actually the underlying
purpose of all modes of extraterritorial service.
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. 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.”
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
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ISSUE #3: Is extraterritorial service of summons under Section
15 a mode of acquiring jurisdiction over the person of the
defendant?
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.
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.
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.
c.) modes of extraterritorial service; IN ANY OTHER
MANNER WHICH THE COURT MAY DEEM SUFFICIENT
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.
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
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?
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.
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.
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.
“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.”
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.
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!]
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.
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
Q: Is there such a thing as service of summons by registered mail
under Rule 14?
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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.
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.
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.
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.”
Q: If the court allows service of summons abroad, then what is the
period to file an answer?
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.
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.
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.
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)
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.
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
And here, she was only given fifteen (15) days to file the
answer. Therefore, there was an erroneous computation of
the period to answer.
VALMONTE vs. CA – 252 SCRA 92 [1996]
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.
“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.”
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.
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.
ISSUE: Was there a valid service of summons on Lourdes
Valmonte?
HELD: There is NONE. There was no valid service of summons.
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SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
In such cases, what gives the court jurisdiction in an action in rem
or quasi in rem is that it has jurisdiction over the res, i.e., the
personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached. Service of summons in the
manner provided in Section 15, Rule 14 of the Rules of Court is not
for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process, so
that the defendant will 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, might be
subjected to a judgment in favor of the plaintiff and he can thereby
take steps to protect his interest if he is so minded. (Regner v.
Logarta, GR No. 168747, Oct. 27, 2007).
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)
In an action in personam, personal service of summons or, if this is
not possible and he cannot be personally served, substituted
service, as provided in Sec. 7, Rule 14 of the Rules of Court, is
essential for the acquisition by the court of jurisdiction over the
person of a defendant who does not voluntarily submit himself to
the authority of the court. If the defendant cannot be served a
summons because he is temporarily abroad, but is otherwise a
Philippine resident, service of summons may, by leave of court, be
made by publication. Otherwise stated, a resident defendant in an
action in personam, who cannot be personally served a summons,
may be summoned either by means of substituted service in
accordance with Section 7, Rule 14 of the Rules of Court, or by
publication as provided in Sections 15 and 16 of the same Rule.
Summary:
A.
Defendant is a resident but identity or whereabouts
unknown (Sec. 14)....in any action (in rem, in personam,
quasi in rem) .... summons may be served by publication
in a newspaper of general circulation with leave of court;
B.
Defendant is a non-resident and not found in the
Philippines (Sec. 15) ... only in rem and quasi in rem
In all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in personam cannot
be brought because jurisdiction over his person is essential to make
a binding decision.
On the other hand, if the action is in rem or quasi in rem,
jurisdiction over the person of the defendant is not essential for
giving the court jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a non resident and he is
not found in the country, summons may be served extraterritorially
in accordance with Sec. 15, Rule 14 of the Rules of Court.
2.
relates to or the subject of which is property
located in the Philippines in which defendant has a
lien or interest; or
3.
demands a relief which consists wholly or in part in
excluding the defendant from any interest in any
property in the Philippines; or
4.
property of defendant has been attached in the
Philippines) ....
(a) with leave of court serve outside the
Philippines by personal service; or
(b) with leave of court serve by publication in a
newspaper of general circulation in which
case a copy of the summons and order the
court must also be sent by registered mail to
the last known address of defendant; or
(1) when the action affects the personal status of the
plaintiff;
(2) when the action relates to, or the subject of which is
property within the Philippines, on which the defendant
claims a lien or an interest, actual or contingent;
(c) any other manner the court deem sufficient.
(3) when the relief demanded in such action consists, wholly
or in part, in excluding the defendant from any interest
in property located in the Philippines; and
C.
(4) when the defendant non-resident's property has been
attached within the Philippines. In these instances,
service of summons may be effected by
b.
c.
affects the personal status of plaintiff;
service is extraterritorial
There are only four instances wherein a defendant who is a nonresident and is not found in the country may be served a summons
by extraterritorial service, to wit:
a.
1.
Defendant is a resident but temporarily out of the
Philippines (Section 16) .... any action .... By substituted
service or with leave of court, personal service out of the
Philippines as under extraterritorial service.
Note: In all these cases, it should be noted that defendant must be
a resident of the Philippines, otherwise, an action in personam
cannot be brought because jurisdiction over his person is essential
to make a binding decision (Belen vs. Chavez, GR No. 175334,
March 28, 2008).
personal service out of the country, with leave of
court;
publication, also with leave of court; or
any other manner the court may deem sufficient.
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Like in the case of an unknown defendant or one whose
whereabouts are unknown, the rule affecting residents who are
temporarily out of the Philippines applies in any action.
ISSUE #1: Can substituted service of summons be applied to a
defendant who is residing in the Philippines but temporarily
out?
Let it be noted that summons by publication may be effected
against the defendant because publication is one of the modes of
service of summons under Sec. 15. But this rule authorizing
summons by publication appears superfluous and unnecessary.
Without such provision, a resident defendant temporarily outside
of the Philippines may still be served through the substituted
service under Sec. 7. This is because even if he is abroad, he has a
residence in the Philippines or a place of business and because
certainly, he cannot be served within a reasonable period because
of his absence in the Philippines, this absence would now trigger
the application of the rule on substituted service of summons
(Montalban vs. Maximo).
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.
Q: What is the main difference between defendant in Section 15
and in Section 16?
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.”
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 comes back. The problem is,
your action will already prescribe.
Q: How will you serve summons to him?
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!
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 cases on this type of defendant was in the old
case of:
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.
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.
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 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.
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.
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SERVICE OF SUMMONS IN EXCEPTIONAL CASES
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
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT
JURIDICAL PERSONALITY
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)
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)
Relate this to Rule 3, Section 3 on Representatives as Parties –
trustee of a trust, guardian, administrator, etc.
Section 8 is related to Rule 3, Section 15:
Q: When you sue a minor or an insane, how is summons served?
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.
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.
In the answer of such defendant, the names
and addresses of the persons composing said
entity must all be revealed. (15a)
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE
JURIDICAL ENTITY.
Q: Since you can sue someone without juridical personality, how do
serve summons upon him?
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)
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
What do you mean by domestic? A corporation or association
organized under Philippine laws.
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)
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: How do you serve summons to somebody who is a prisoner?
Q: To whom do you serve summons if it is a corporation?
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
A: In the case of a corporation, summons is served upon its officers.
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Q: Who are these officers?
summons upon an in-house 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 inhouse 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.
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.
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.
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.
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.
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 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-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.
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.
In the fairly recent case of Paramount Insurance Corp. vs. A.C.
Ordonez Corporation GR 175109 August 6, 2008 the Court
reiterated the rule that Sec. 11 sets out an exclusive enumeration
of the officers who can receive summons on behalf of the
corporation and that service of summons to someone other than
those enumerated is not valid. The Court further emphasized that
the argument of substantial compliance is no longer compelling.
Declared the Court:
However, there are cases were the service of summons to an
ordinary employee who is not an officer was valid. Among which
are:
“We have ruled that the new rule … is restricted, limited and
exclusive … Had the Rules of Court Revision Committee intended to
liberalize the rule on service of summons, it could have done so in
clear and concise language. Absent a manifest intention to
liberalize the rule, strict compliance with Section 11, Rule 14 of the
1997 Rules of Civil Procedure is required.”
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
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
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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.
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."
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.’
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.
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!
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.”
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.
“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.”
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.
“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.”
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
“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
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upon the branch manager of Villarosa at its branch office at
CDO, instead of upon the GM at its principal office at 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.”
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 non-resident defendant. The best
example of a foreign corporation doing business in the Philippines
are air line companies, foreign banks.
“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.”
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.
“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.”
NORTHWEST ORIENT AIRLINES vs. CA – 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.
“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.”
“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.”
“WHEREFORE, the petition is hereby GRANTED. The assailed
Orders of the public respondent trial court are ANNULLED and
SET ASIDE.”
BALTAZAR vs. CA – 168 SCRA 354 [1988]
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE
JURIDICAL ENTITY
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.
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)
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?
Q: What is the difference between corporation or entity in Section
11 and Section 12?
HELD: There was NONE. The deputy sheriff should have
known what every law school student knows! – that
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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.
business in the Philippines. So, if a foreign corporation is not doing
business in the Philippines, it cannot be sued, just like a nonresident defendant because the court can never acquire
jurisdiction over that person or foreign corporation. We know that
‘no?
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.”
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.
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. CA – 170 SCRA 800
Q: Now, can that corporation be used in the Philippine courts?
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.
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
ISSUE #1: Can you still sue a dissolved corporation?
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO GR L-7154
October 23, 1954
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.
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.’”
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.
“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.”
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.
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.’”
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.
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
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
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LINGER AND FISCHER vs. IAC – 125 SCRA 522
B.
Minors and incompetents (Section 10) .... in case of
minors: by serving upon the minor regardless of age, and
upon his legal guardian or also upon either of his
parents. .... in case of incompetents - by serving on him
personally and upon his legal guardian, but not upon his
parents, unless they are his legal guardians.... In any
event, if the minor or incompetent has no legal guardian,
the plaintiff must obtain the appointment of a guardian
ad litem for him.
C.
Prisoner (Section 9) .... Serve on officer having
management of the jail or prison (warden).
D.
Domestic private juridical entity (Section 11) ..... to the
president, managing partner,, general manager,
corporate secretary, treasurer, or in house counsel. Note
that service upon a person other than those mentioned
is invalid and does not bind the corporation. the
enumeration is exclusive.
E.
Defendant is a foreign private juridical entity (Section 12)
.... Serve on the resident agent; or if none, on the
government official designted by law; or any officer or
agent of the corporation within the Philippines.
F.
Public corporation (Section 13) .... In case defendant is
the Republic of the Philippines by serving upon the
Solicitor General; In case of province, city or municipality
or like corporations, by serving on its executive head or
on such other officer or officers as the law or the court
may direct.
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)
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)
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.
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.
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.
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.
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. 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
Summary of Service of Summons on Different Entities
A.
Entity without juridical personality (Sec. 8) .... upon any
or all the defendants being sued under common name;
or person in charge of the office.
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prepaid, directed to the defendant by
registered mail to his last known address.
(21)
the SC in the leading case of LA NAVAL DRUG CORPORATION vs. CA,
236 SCRA 28, which we will discuss more in detail when we reach
Rule 16 on Motion to Dismiss.
VOLUNTARY AND SPECIAL APPEARANCE
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 necessarily 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.
Any form of appearance in court, by the defendant, by his agent
authorized to do so, or by attorney, is equivalent to service of
summons, except where such appearance is precisely to object to
the jurisdiction of the court over the person of the defendant.
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 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
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Rule 15
Q: What are the requisites of a valid motion.
MOTIONS
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)
What is a motion? Define a motion.
SECTION 1. Motion defined. A motion is an
application for relief other than by a
pleading. (1a)
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.
Kinds of Motions
1)
Motion Ex Parte is made without the presence or a
notification to the other party because the question
generally presented is not debatable, like a Motion for
Extension of Time to File Pleadings;
2)
Motion of Course is where a movant is entitled to the relief
or remedy sought as a matter of discretion on the part of
the court;
3)
Litigated Motion is one made with notice to the adverse
party to give an opportunity to oppose, like a Motion to
Dismiss);
4)
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)
Contents of a Motion:
Special Motion is a one addressed to the discretion of the
court.
1)
the relief sought to be obtained;
General rule: A motion cannot pray for judgment.
2)
the ground upon which it is based; and
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, “The complaint be dismissed.” That is what you pray
in your complaint or in your answer.
3)
if required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavit and other papers.
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.
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.
Q: Is it necessary that a motion be accompanied by supporting
affidavits and other papers?
A: No, unless required by the Rules or necessary to prove facts
alleged therein.
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.
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.
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.)
2.)
3.)
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.
Motion for Judgment to the Demurrer to Evidence
(Rule 33);
Motion for Judgment on the Pleadings (Rule 34);
and
Motion for Summary Judgment (Rule 35).
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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.
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 will not know, 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.
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)
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 three-day 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.
Requisites of a Motion (not made in open court or in the course of
hearing or trial) under Sections 3 and 4:
1.
it must be in writing (Sec. 3);
2.
Hearing of Motion set by the applicant (Sec. 4);
3.
Motion and notice of hearing must be served at least 3
days before the date of hearing. This is called the Three
Day Notice Rule (Sec. 4);
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)
Exceptions to the 3 day notice rule:
1.
2.
3.
4.
ex parte motions;
urgent motions;
Motions agreed upon by the parties to be heard on
shorter notice or jointly submitted by the parties; and
Motions for summary judgment which must be served at
least 10 days before its hearing.
Notice of Hearing shall be addressed to all parties concerned. Date
of hearing must not be later than 10 days from the filing of the
motion (Section 5);
Section 4, says 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.
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])
However, a motion need not be set for hearing if it is not a litigated
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 or a motion to set case
for pre-trial. So with this kind of motion, the court can immediately
grant your motion.
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Q: To whom should the notice of hearing be addressed?
has actually had the opportunity to be heard, and has, indeed,
been heard through pleadings filed in opposition to the motion, the
purpose behind the rule is deemed duly served. The requirements
of due process are substantially complied with. (Jehan Shipping
Corporation vs. NFA, GR No. 159750, Dec. 14, 2005)
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.
The Court has consistently held that a motion which does not meet
the requirements of Sections 4 and 5 on hearing and notice of
hearing, is a mere scrap of paper, which the clerk of court has no
right to receive and the trial court has no authority to act upon.
Service of a copy of a motion containing a notice of the time and
the place of hearing of that motion is a mandatory requirement,
and the failure of movants to comply with these requirements
renders their motions fatally defective (Vette Industrial Sales Co.,
Inc. vs. Cheng GR 170232-170301, December 5, 2006).
(Signed) Atty. Hong Hunks
Counsel for 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.
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)
The SC has already commented on that several times. One of them
was the case of
Proof of service of the motion is required – “No written motion set
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.
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.”
The only exceptions 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 an indigent upon ex-parte motion
together with the complaint and a hearing. Therefore, there is no
need to furnish copy of the motion to the other party.
So it is very technical.
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.
But those are the only exceptions. So, as a rule, every motion must
be served to the opposite party.
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 stretched. And to make it worse, they
will file it in November and they will set it for hearing in December.
One month from now.
Outline of Sections 2 to 6
Q: What are the requisites of a valid motion?
A: The REQUISITES OF A VALID MOTION are the following:
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.
The general rule is that the three-day notice requirement in motions
under Sections 4 and 5 of Rule 15 is mandatory. It is an integral
component of procedural due process. But when the adverse party
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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;
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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.
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, L22974, 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.
Effect of failure to set the motion for hearing, to include a notice of
hearing and to serve the motion (Secs. 4, 5, 6 of Rule 15)
Note:


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.
Any motion that does not comply with Sections 4, 5 and
6 is a mere scrap of paper.
It does not interrupt the reglementary period for the
filing of the requisite pleading.
So, the principle there is, if you have two or more grounds you
should only file one motion where you invoke all your grounds.
The well-settled rule is that a motion which fails to comply with
such requirements is a useless piece of paper (Neri vs. de la Pena
457 SCRA 438). It is pro forma presenting no question which the
court could decide (Boiser vs. Aguirre, Jr. 458 SCRA 430). If filed,
such motion is not entitled to judicial cognizance and does not stop
the running of the period for filing the requisite pleading (Cruz vs.
CA 388 SCRA 72). A motion which does not comply with the rules
on motion is considered pro forma and thus, will be treated as one
filed merely to delay the proceedings (Marikina Development
Corporation vs. Flojo 251 SCRA 87).
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)
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.
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.
Note that there is no motion day in the Supreme 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)?
OMNIBUS MOTION RULE
A: The following:
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)
1)
2)
3)
4)
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Lack of jurisdiction over the subject matter;
Litis pendentia;
Res adjudicata; and
Prescription.
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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
complaint, 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 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.
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Rule 16
However the admission extends only to material and relevant
allegations.
MOTION TO DISMISS
If for instance the plaintiff files an action for damages against the
defendant who files a motion to dismiss, the defendant in effect
says that even assuming the facts to be true as alleged by the
plaintiff, the latter has failed to show that he has a right to relief
because his action has prescribed or because the court where the
action was filed has no jurisdiction over the subject matter of the
complaint.
Even when the allegations in the complaint are now clear enough
to enable the defendant to file his responsive pleading because the
adverse party has already submitted a bill of particulars, the
defendant need not file his answer immediately. He may first
explore the possibility of filing a motion to dismiss under Rule 16. If
there is no ground for a motion to dismiss, he has to file his
answer.
Omnibus motion
When a motion to dismiss is filed, all grounds available at the time
the motion is filed must be invoked in the motion. This is required
under the “omnibus motion rule.” Grounds not so invoked are
deemed waived. The grounds not waived however, are lack of
jurisdiction over the subject matter, litis pendencia, res judicata
and prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
While the filing of a motion to dismiss is not prohibited, the remedy
being an integral part of the Rules of Court, the current policy of
the SC is not to encourage the filing of such motion but to instead
file an answer to the complaint. Thus, effective August 26, 2004,
within one day from receipt of the complaint, summons shall
contain a reminder to the defendant to observe restraint in filing a
motion to dismiss and instead allege the grounds thereof as
defenses in the answer (A.M. No. 03-1-09-SC, July 13, 2004).
The above rule applies only when a motion to dismiss is filed.
Where no motion to dismiss is filed, the grounds for a motion to
dismiss may be availed of as affirmative defenses in the answer
(Sec. 6 Rule 16). No defense is waived because no motion to
dismiss was filed. There is indeed an unmistakable difference in the
legal effects between filing and not filing a motion to dismiss in
relation to waiver of defenses.
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:
If no motion to dismiss has been filed, any of the grounds for
dismissal provided in the Rules 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. Based on the foregoing, a preliminary hearing
undeniably is subject to the discretion of the trial court. The trial
court’s order granting or dispensing with the need for a preliminary
hearing may not be corrected by certiorari absent any showing that
the trial court had acted without jurisdiction or in excess thereof or
with such grave abuse of discretion as would amount to lack of
jurisdiction (Misamis Occidental II Cooperative, Inc. vs. David 468
SCRA 63).
(1) the court has no jurisdiction over the subject matter of
the case or over the person of the accused;
(2) the person who filed 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.
A motion to dismiss is not a responsive pleading. It is not a
responsive pleading at all.
Hypothetical admissions of a motion to dismiss
A motion to dismiss hypothetically admits the truth of the factual
allegations of the complaint (Peltan Development Inc., vs. CA 270
SCRA 82; Cuarto vs. De Luna 22 SCRA 459). The admission extends
only to such matters of fact that have been sufficiently pleaded and
not to mere epithets charging fraud, allegations of legal conclusions
or erroneous statements of law, inference from facts not stated,
matters of evidence or irrelevant matters (De Dios vs. Bristol
Laboratories, 55 SCRA 349) Only deemed hypothetically admitted
are material allegations, not conclusions. An allegation that a
contract is an “equitable mortgage” is a conclusion and not a
material allegation. Hence, it is not deemed admitted by the
motion to dismiss (Dalandan vs. Julio 10 SCRA 4000).
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
General rule: A court may not motu proprio dismiss a case unless
a motion to that effect is filed by a party thereto.
Exceptions:
1)
A motion to dismiss generally partakes the nature of a demurrer. It
hypothetically admits the allegations stated in the complaint.
2)
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Those cases where the court may dismiss a case motu
proprio (Sec. 1, R 9);
Sec. 3 R 17 (Failure to prosecute); and
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3)
Rule on Summary Procedure (Sec. 4, 1991 Revised Rules
on Summary Procedure.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER
THE PERSON OF THE DEFENDING PARTY
Types of Dismissal of Action:
1)
Upon Motion to Dismiss before Answer under Rule 16;
2)
Upon Motion to Dismiss under Rule 17;
a.
b.
c.
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 may acquire jurisdiction over your person in some other
capacity.
upon notice by plaintiff;
upon motion by plaintiff; or
due to fault of plaintiff.
3)
Motion to dismiss called a demurrer to evidence after
plaintiff has completed the presentation of his evidence
under Rule 33; and
4)
Dismissal of an appeal.
EXAMPLE: You are improperly served with summons but you file a
motion for bill of particulars or you file a motion for extension of
time to file for an answer then the court acquires jurisdiction over
your person and you cannot any more file a motion to dismiss. The
principle is that the moment you file a motion for bill of particulars
or you file a motion for extension of time, in effect you have
already submitted to the jurisdiction of the court. If there was any
defect in the service of summons, it was already cured.
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.
EXAMPLE: Now, suppose the summons 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?
A motion to dismiss that is filed after the answer has been filed, is
considered filed out of time and the defending party is stopped
from filing the motion to dismiss (Philville vs. Javier 477 SCRA 533).
This is only a general rule.
Note however, that a motion to dismiss may be filed even after the
filing of the answer and will not be considered filed out of time if
the ground raised in the motion is either of the following:
(a)
(b)
(c)
(d)
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 you have received the summons. 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.
Lack of jurisdiction over the subject matter;
Litis pendencia;
Res judicata; or
Prescription (Sec. 1 Rule 9).
Under said rule, when any of the above grounds appears from the
pleadings or from the evidence on record, the court shall dismiss
the claim. The authority given to the court is, from the tenor of the
rule, not only mandatory but also subject to a motu proprio
dismissal. Since the ground for dismissal may appear from the
evidence, it is obvious that the dismissal may be made during the
trial and this means, even after the answer has been filed.
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.
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.
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With all these decided cases, it would seem that the objection of
no jurisdiction over the person of the defending party is getting
weaker and weaker because of so many exceptions such as:
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.
(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.
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 allegations in the complaint .
Q: How do we determine whether a court has a jurisdiction or not
over a particular case?
FAR CORPORATION vs. FRANCISCO – 146 SCRA 197
A: By reading the complaint, 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 not by the
allegation of the defendant in his motion to dismiss or answer.
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.
EXAMPLE: A filed a complaint against B before the RTC of Davao
City to recover an unpaid loan of P350,000. By going over the
complaint, does the RTC have jurisdiction? YES. But here comes the
defendant filing a motion to dismiss under Rule 16 alleging that “it
is not P350,000 but only P250,000. Therefore, the court has no
jurisdiction over the subject matter.” So the court is confronted
with this situation.
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?
LA NAVAL DRUG CORPORATION vs. CA – 236 SCRA 78
Q: What will the court do? Should the court deny the motion to
dismiss?
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 or lack of jurisdiction. So, you
can file a motion to dismiss on that ground together with
other grounds. There is no more waiver. 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.
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.
Obviously the ruling in NAVAL is incorporated in the Rules of Court.
Let’s go back to Rule 14 Section 20:
But suppose it is really P250,000 only and in the course of the trial,
even plaintiff’s own evidence shows that the loan is only P250,000.
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.
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.
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.
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
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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 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.
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 all along the court has
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 queer 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.
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.
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.
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 damages 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.
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.
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.
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
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter
may be raised:
1)
2)
3)
4)
5)
In the answer;
In the course of the trial;
After the trial;
After the judgment; or even
For the first time on appeal.
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
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.
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SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC – 206 SCRA 283
[1992]
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY
TO SUE;
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.”
Q: Give an example when the plaintiff has no legal capacity to
sue.
“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
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]).
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:
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.
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 rights 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.
So, this has already been clarified. The latest case was the 1995
case of
DE LEON vs. CA – 245 SCRA 166
Q: (Bar question) Distinguish lack of legal capacity to sue from
lack of legal personality to sue.
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.”
A: The lack of legal capacity to sue refers to disability of the
plaintiff while the lack of legal personality to sue is 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)
In other words, do not abuse the SIBONGHANOY ruling. That is very
exceptional case.
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.
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.
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 and 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 your own name because the real party in interest is the principal,
not the agent.
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).
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
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ground, actually that would fall more under paragraph [g] – that
the pleadi