U.P. LAW BOC
REMEDIAL LAW
U.P. LAW BOC
REMEDIAL LAW
U.P. LAW BOC
REMEDIAL LAW
U.P. LAW BOC
REMEDIAL LAW
TABLE OF CONTENTS
CIVIL PROCEDURE ...................................................1
I.
A.
B.
C.
D.
E.
CIVIL PROCEDURE ..................................... 2
GENERAL PRINCIPLES IN REMEDIAL LAW
...................................................................... 2
1. Distinguish: Substantive Law and Remedial
Law .............................................................. 2
2. Rule-Making Power of the Supreme Court 2
3. Nature of Philippine Courts ....................... 3
JURISDICTION OF COURTS ....................... 5
1. Classification of Jurisdiction ...................... 5
2. Doctrines of Hierarchy of Courts and
Continuity of Jurisdiction ............................. 6
3. Jurisdiction Of Philippine Courts ............... 6
4. Aspects of Jurisdiction ............................ 15
5. Distinguish: Error of Jurisdiction and Error of
Judgment ................................................... 19
6. Distinguish: Jurisdiction and Venue ........ 20
7. Jurisdiction over Small Claims, Rules on
Summary Procedure, Brgy. Conciliation ... 20
CIVIL PROCEDURE ................................... 22
1. General Provisions .................................. 22
2. Actions .................................................... 22
3. Cause Of Action ...................................... 26
4. Parties To Civil Actions ........................... 29
5. Venue ...................................................... 36
6. Pleadings ................................................ 38
7. Summons ................................................ 65
8. Motions ................................................... 72
9. Dismissal Of Actions ............................... 77
10.
Pre-Trial .............................................. 80
11.
Intervention ......................................... 87
12.
Subpoena ........................................... 89
13.
Computation Of Time .......................... 91
14.
Modes Of Discovery ........................... 92
15.
Trial ................................................... 103
16.
Demurrer To Evidence ...................... 109
17.
Judgments And Final Orders ............ 110
18.
Post-Judgment Remedies ................ 116
19. Execution, Satisfaction, And Effect Of
Judgments ............................................... 147
PROVISIONAL REMEDIES ...................... 167
1. Nature And Purpose ............................. 167
2. Jurisdiction Over Provisional Remedies .. 168
3. Preliminary Attachment ......................... 168
4. Preliminary Injunction ............................ 175
5. Receivership ......................................... 179
6. Replevin ................................................ 182
7. Provisional Remedies And Interim Reliefs
Under Special Laws And Rules ............... 186
SPECIAL CIVIL ACTIONS ........................ 187
1. Nature Of Special Civil Actions ............. 187
2. Distinguish: Ordinary Civil Actions And
Special Civil Actions ................................ 187
3. Jurisdiction And Venue ......................... 188
4. Interpleader ........................................... 188
5. Declaratory Reliefs And Similar Remedies
190
6. Review Of Judgments And Final Orders Or
Resolution Of The Commission On Elections
And The Commission On Audit ............... 194
7. Certiorari, Prohibition, And Mandamus .... 195
8. Quo Warranto ........................................ 201
9. Expropriation ......................................... 204
10.
Foreclosure Of Real Estate Mortgage
.......................................................... 210
11.
Partition ............................................. 216
12. Forcible Entry And Unlawful Detainer ...... 219
13.
Contempt .......................................... 226
NOTE: PARTS F-H ARE UNDER SPECIAL PROCEDURE,
CRIMINAL PROCEDURE, AND EVIDENCE. ..................... 230
I.
J.
K.
L.
REVISED RULES ON SUMMARY ..................
PROCEDURE .................................................
.................................................................. 230
1. Cases Covered By The Rule ................. 230
2. Effect Of Failure To Answer .................. 231
3. Preliminary Conference And Appearances
Of Parties ................................................. 231
4. Prohibited Pleadings And Motions ........ 232
5. Appeal ................................................... 232
KATARUNGANG PAMBARANGAY ........ 233
1. Cases Covered ..................................... 233
2. Subject Matter For Amicable Settlement
233
3. Venue .................................................... 233
4. When Parties May Directly Go To Court 234
5. Execution .............................................. 234
6. Repudiation ........................................... 235
RULES OF PROCEDURE FOR SMALL CLAIMS
CASES .......................................................... 235
1. Scope And Applicability Of The Rule .............
235
2. Commencement Of Small Claims Action;
Response ................................................ 236
3. Prohibited Pleadings And Motions ..............
.............................................................. 238
4. Appearances ......................................... 238
5. Hearing; Duty Of The Judge ................. 238
6. Finality Of Judgment ............................. 239
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES .......................... 239
1. Scope And Applicability Of The Rule .... 239
2. Civil Procedure ...................................... 239
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4.
5.
M.
1.
2.
3.
4.
5.
Special Proceedings ............................. 244
Criminal Procedure ............................... 247
Evidence ............................................... 251
ALTERNATIVE DISPUTE RESOLUTION 251
Types Of Processes And Procedures In Adr;
Comparison With Court-Annexed Mediation
252
Domestic Arbitration .............................. 252
Judicial Review Of Arbitral Awards ....... 253
Appeal From Court Decisions On Arbitral
Awards .................................................. 254
Special Rules Of Court On ADR ........... 254
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F.
2.
3.
4.
G.
Time within which Claims shall be filed;
Exceptions ............................................. 291
Statute of Non-Claims ........................... 291
Claim of Executor or Administrator against
the Estate .............................................. 293
Payment of Debts .................................. 294
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS ...................................................... 298
1.
2.
SPECIAL PROCEEDINGS .....................................267
II.
SPECIAL PROCEEDINGS ....................... 268
A.
SETTLEMENT OF ESTATE OF DECEASED
PERSONS ............................................................. 268
1. Which Court has Jurisdiction ................ 269
2. Venue in Judicial Settlement of Estate . 269
3. Extent of Jurisdiction of Probate Court . 270
4. Powers and Duties of a Probate Court . 271
B.
SUMMARY SETTLEMENT OF ESTATES ............ 271
1. Extrajudicial Settlement by Agreement
Between Heirs; When Allowed ................ 271
2. Two-Year Prescriptive Period ............... 272
3. Affidavit of Self-Adjudication by Sole Heir ...
.............................................................. 273
4. Summary Settlement of Estates of Small
Value; When Allowed .............................. 273
5. Remedies of Aggrieved Parties after
Extrajudicial Settlement of Estate ............ 274
C.
PRODUCTION AND PROBATE OF WILL .............. 276
1. Nature of Probate Proceedings ............. 276
2. Who May Petition For Probate; Persons
Entitled To Notice .................................... 277
D.
ALLOWANCE OR DISALLOWANCE OF WILL ....... 277
3. Contents of petition for allowance of will .....
.............................................................. 278
4. Grounds for Disallowing a Will .............. 279
5. Reprobate; Requisites before Will Proved
Outside Allowed in the Philippines; Effects
of Probate ............................................. 280
E.
LETTERS TESTAMENTARY AND OF ADMINISTRATION
281
1. When and to Whom Letters of
Administration are Granted ................... 281
2. Order of Preference .............................. 283
3. Opposition to Issuance of Letters
Testamentary; Simultaneous Filing of
Petition for Administration ..................... 284
4. Powers and Duties of Executors and
Administrators; Restrictions on the Powers ...
.............................................................. 285
5. Appointment of Special Administrator ... 288
6. Grounds for Removal of Administrator .. 289
CLAIMS AGAINST THE ESTATE ........................ 290
1.
H.
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Actions by and against Executors ......... 298
Requisites before Creditor may bring an
Action for Recovery of Property
Fraudulently Conveyed by the Deceased
.............................................................. 299
DISTRIBUTION AND PARTITION ........................ 300
1. Liquidation ............................................. 300
2. Project of Partition ................................. 300
3. Remedy of an Heir Entitled to Residue but
Not Given His Share ............................. 301
4. Instances when Probate Court may Issue
Writ of Execution ........................................... 301
TRUSTEES.................................................... 302
1. Distinguish Trustee and
Executor/Administrator .......................... 302
2. Conditions of the Bond .......................... 303
3. Requisites for the Removal and
Resignation of a Trustee ....................... 303
4. Grounds for the Removal and Resignation
of a Trustee ........................................... 303
5. Extent of Authority of Trustee ................ 304
ESCHEAT ..................................................... 304
1. When to File .......................................... 304
2. Requisites for Filing of Petition .............. 305
3. Remedy of Respondent against Petition;
Period for Filing a Claim ........................ 305
GUARDIANSHIP ............................................. 305
1. Venue .................................................... 306
2. Appointment of Guardians .................... 306
3. General Powers and Duties of Guardians ...
.............................................................. 307
4. Termination of Guardianship ................. 309
ADOPTION .................................................... 310
1. Distinguish Domestic Adoption from Intercountry Adoption ...................................... 310
2. Domestic Adoption ................................ 310
3. Inter-country Adoption ........................... 313
WRIT OF HABEAS CORPUS ............................. 314
1. Contents of the Petition ......................... 316
2. Contents of the Return .......................... 317
3. Peremptory Writ and Preliminary Citation ...
.............................................................. 317
4. When Not Proper or Applicable ............. 318
5. When Writ Disallowed or Discharged .... 318
6. Distinguished From Writ of Amparo and
Habeas Data ............................................ 319
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7. Writ of Habeas Corpus In Relation To
Custody of Minors [A.M. No. 03-04-04-SC] ...
.............................................................. 319
WRIT OF AMPARO ......................................... 323
1. Coverage .............................................. 323
2. Differences Between Amparo and Search
Warrant .................................................... 324
3. Who May File ........................................ 324
4. Contents of Return ................................ 326
5. Effects of Failure to File Return ............ 327
6. Omnibus Waiver Rule ........................... 327
7. Procedure for Hearing ........................... 327
8. Institution of Separate Action ................ 327
9. Effect of Filing a Criminal Action ........... 327
10.
Consolidation .................................... 328
11. Interim Reliefs Available to Petitioner and
Respondent ............................................. 328
12. Quantum of Proof in Application for Issuance
of Writ of Amparo .................................... 329
WRIT OF HABEAS DATA ................................. 330
1. Scope of Writ ........................................ 330
2. Availability of Writ .................................. 330
3. Who May File ........................................ 331
4. Contents of the Petition ......................... 331
5. Contents of Return ................................ 331
6. Instances When Defenses May Be Heard in
Chambers ................................................ 332
7. Consolidation ........................................ 332
8. Effect of Filing Criminal Action .............. 333
9. Institution of Separate Action ................ 333
10. Quantum of Proof in Application for Issuance
of Writ of Habeas Data ............................ 333
CHANGE OF NAME ........................................ 343
1. Differences Under Rule 103, R.A. No. 9048
and Rule 108 ........................................... 343
2. Grounds for Change of Name ............... 345
ABSENTEES ................................................. 346
1. Purpose of the Rule .............................. 346
2. Who May File; When to File .................. 346
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B.
C.
D.
CANCELLATION OR CORRECTION OR ENTRIES IN THE
CIVIL REGISTRY ................................................ 348
S.
APPEALS IN SPECIAL PROCEEDINGS ............... 351
1. Judgments and Orders for Which Appeal
May Be Taken ......................................... 351
2. Modes of Appeal ................................... 352
3. Rule on Advance Distribution ................ 352
E.
CRIMINAL PROCEDURE ......................................353
III.
A.
CRIMINAL PROCEDURE ................................. 354
GENERAL MATTERS............................... 354
1. Jurisdiction over Subject Matter and
Jurisdiction over Person of the Accused
Distinguished ........................................... 354
2. Requisites for Exercise of Criminal
Jurisdiction .............................................. 357
F.
3. Jurisdiction of Criminal Courts .............. 357
4. When Injunction May Be Issued To Restrain
Criminal Prosecution ............................... 359
PROSECUTION OF OFFENSES ......................... 359
1. Criminal Actions; How Instituted ........... 359
2. Who May File; Crimes That Cannot be
Prosecuted De Officio .............................. 360
3. Criminal Actions, When Enjoined .......... 363
4. Control of Prosecution ........................... 363
5. Sufficiency of Complaint or Information 365
6. Designation of Offense .......................... 367
7. Cause of the Accusation ....................... 368
8. Duplicity of the Offense; Exception ....... 369
9. Amendment or Substitution of Complaint or
Information ............................................... 369
10.
Venue of Criminal Actions ................. 372
11.
Intervention of Offended Party .......... 373
PROSECUTION OF CIVIL ACTION ...................... 373
1. Rule on Implied Institution of Civil Action with
Criminal Action ........................................ 373
2. When Civil Action May Proceed
Independently .......................................... 374
3. When Separate Civil Action Is Suspended .
.............................................................. 375
4. Effect of Death of the Accused or Convicted
On Civil Action ......................................... 375
5. Prejudicial Question .............................. 376
6. Rule on Filing Fees in Civil Action Deemed
Instituted With the Criminal Action ........... 377
PRELIMINARY INVESTIGATION ............. 377
1. Nature of Right ...................................... 377
2. Purposes of Preliminary Investigation ... 378
3. Who May Conduct Determination of
Existence of Probable Cause .................. 379
4. Resolution of the Investigating Prosecutor ..
.............................................................. 381
5. Review .................................................. 382
6. When Warrant of Arrest May Issue ....... 383
7. Cases Not Requiring Preliminary
Investigation nor Covered By the Rule on
Summary Procedure ................................ 383
8. Remedies of Accused If There Was No
Preliminary Investigation ......................... 384
9. Inquest .................................................. 385
ARREST .................................................... 386
1. Arrest, How Made ................................. 386
2. Arrest without Warrant, When Lawful .... 386
3. Method of Arrest .................................... 390
4. Requisites of a Valid Warrant of Arrest . 392
5. Determination of Probable Cause For
Issuance of Warrant of Arrest .................. 392
BAIL .......................................................... 392
1. Nature ................................................... 392
2. When a Matter of Right; Exceptions ...... 393
3. When a Matter of Discretion .................. 394
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4. Hearing of Application for Bail in Capital
Offenses .................................................. 396
5. Guidelines in Fixing Amount of Bail ...... 396
6. When Bail Not Required ....................... 397
7. Increase or Reduction of Bail ................ 397
8. Forfeiture and Cancellation of Bail ........ 398
9. Application not a Bar to Objections on Illegal
Arrest, Lack of or Irregular Preliminary
Investigation ............................................ 398
ARRAIGNMENT AND PLEA .................... 398
1. How Made ............................................. 399
2. When a Plea of Not Guilty Should Be
Entered .................................................... 401
3. When Accused May Enter a Plea of Guilty to
a Lesser Offense ..................................... 401
4. Accused Pleads Guilty to Capital Offense;
What the Court Should Do ...................... 401
5. Searching Inquiry .................................. 402
6. Improvident Plea of Guilty to a Capital
Offense .................................................... 402
MOTION TO QUASH ................................ 403
1. Grounds ................................................ 404
2. Distinguish Motion to Quash from Demurrer
to Evidence .............................................. 406
3. Effects of Sustaining the Motion to Quash ..
.............................................................. 407
4. Exception to the Rule that Sustaining the
Motion is Not a Bar to Another Prosecution ..
.......................................................... 408
5.
Double Jeopardy ............................... 408
6.
Provisional Dismissal ........................ 411
PRE-TRIAL ............................................... 411
1. Matters to Be Considered During Pre-Trial
412
2. What the Court Should Do When
Prosecution and Offended Party Agree to the
Plea Offered by the Accused ................... 412
3. Pre-Trial Agreement .............................. 413
4. Non-Appearance during Pre-Trial ......... 413
5. Pre-Trial Order ...................................... 413
TRIAL ........................................................ 414
1. Instances When Presence of Accused is
Required by Law ........................................... 414
2. Suspension on Account of Absence of
Witnesses ................................................ 414
3. Trial in absentia ..................................... 415
4. Remedy When Accused is not Brought to
Trial within the Prescribed Period ............ 415
5. Requisites for Discharge of the Accused to
Become a State Witness ......................... 416
6. Effects of Discharge of Accused as State
Witness .................................................... 416
7. Demurrer to Evidence ........................... 417
8. Guidelines on Continuous Trial (A.M. No. 1506-10-SC) ................................................ 418
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JUDGMENT .............................................. 421
1. Requisites of a Judgment ...................... 421
2. Contents of Judgment ........................... 422
3. Promulgation of Judgment; Instances of
Promulgation of Judgment in Absentia .... 423
4. Instances when Judgment Becomes Final
424
NEW TRIAL OR RECONSIDERATION..... 425
1. Grounds for New Trial ........................... 425
2. Grounds for Reconsideration ................ 425
3. Requisites Before a New Trial May be
Granted on Ground of Newly Discovered
Evidence .................................................. 425
4. Effects of Granting a New Trial or
Reconsideration ....................................... 426
APPEAL .................................................... 427
1. Effect of an Appeal ................................ 427
2. Where to Appeal ................................... 427
3. How Appeal Taken ................................ 427
4. Effect of Appeal by Any of Several Accused
....................................................................
433
5. Grounds for Dismissal of Appeal ........... 434
SEARCH AND SEIZURE .......................... 434
1. Nature of Search Warrant ..................... 434
2. Distinguish From Warrant of Arrest ....... 435
3. Application for Search Warrant; Where
Filed ...................................................... 436
4. Probable Cause for Issuance of Search
Warrant .................................................... 437
5. Personal Examination by Judge of the
Applicant and Witnesses ......................... 437
6. Particularity of Place to Be Searched and
Things to Be Seized ................................ 438
7. Personal Property to be Seized ............ 438
8. Exceptions to the Search Warrant
Requirement ............................................ 439
9. Remedies From Unlawful Search And
Seizure .................................................... 443
10.
Cybercrime Warrants ........................ 444
PROVISIONAL REMEDIES IN CRIMINAL
CASES .......................................................... 450
1. Nature ................................................... 450
2. Kinds of Provisional Remedies ............. 451
EVIDENCE ............................................................. 453
IV.
A.
1.
2.
3.
4.
5.
EVIDENCE ................................................... 454
GENERAL PRINCIPLES........................... 454
Concept of Evidence ............................. 454
Scope and Applicability of the Rules of
Evidence .................................................. 454
Distinguish: Proof vs. Evidence ............. 455
Distinguish: Factum Probans v. Factum
Probandum .............................................. 455
Admissibility of Evidence ....................... 455
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E.
F.
Burden of Proof and Burden of Evidence ...
.............................................................. 460
7. Presumptions ........................................ 461
8. Construction of the Rules of Evidence .. 465
9. Quantum of Evidence ........................... 466
JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS ................................................ 467
1. What Need Not Be Proved .................... 467
2. Matters of Judicial Notice ...................... 467
3. Judicial Admissions ............................... 470
OBJECT (REAL) EVIDENCE.................... 472
1. Nature of object evidence ..................... 472
2. Requisites for Admissibility ................... 472
3. Categories of Object Evidence ............. 473
4. Chain Of Custody In Relation To Sec 21 Of
The Comprehensive Dangerous Drugs Act
Of 2002 .................................................... 473
5. DNA Evidence ....................................... 474
DOCUMENTARY EVIDENCE ................... 477
1. Meaning of Documentary Evidence ...... 477
2. Requisites for Admissibility ................... 477
3. Original Document Rule ........................ 477
4. Electronic Evidence .............................. 479
5. Parol Evidence Rule ............................. 482
6. Authentication and Proof of Documents .....
.............................................................. 484
TESTIMONIAL EVIDENCE ................................ 487
1. Qualifications of a Witness .................... 487
2. Disqualifications of Witnesses .............. 488
3. Examination of a Witness ..................... 494
4. Admissions and Confessions ................ 502
5. Hearsay Rule ........................................ 507
6. Opinion Rule ......................................... 515
7. Character Evidence .............................. 517
8. Judicial Affidavit Rule [A.M. 12-8-8-SC] 518
OFFER AND OBJECTION ........................ 521
1. Offer of Evidence .................................. 521
2. When to Make an Offer ......................... 522
3. Objection ............................................... 522
4. Repetition of an Objection ..................... 523
5. Ruling .................................................... 523
6. Striking Out an Answer ......................... 524
7. Tender of Excluded Evidence ............... 524
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b. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
I. CIVIL PROCEDURE
A. GENERAL PRINCIPLES
IN REMEDIAL LAW
1. Distinguish: Substantive Law
and Remedial Law
Substantive law – Creates, defines, and
regulates rights and duties concerning life,
liberty, or property the violation of which gives
rise to a cause of action. [Bustos v. Lucero,
G.R. No. L-2068 (1948)]
Remedial law – Lays down methods by which
the rights and obligations arising from
substantive law are protected, enforced, and
given effect. [Bustos v. Lucero, G.R. No. L2068 (1948)]
Note: Procedural rules are not laws, for they
are promulgated by the Supreme Court in their
rule-making capacity under the Constitution
and do not originate from the legislative [Alvero
v. Dela Rosa, G.R. No. L-286 (1946)].
However, procedural rules have the force and
effect of law, if not in conflict with positive
law, since procedural rules are subordinate to
statute. [Inchausti & Co v. De Leon, G.R. No.
7887 (1913)]
2. Rule-Making Power of the
Supreme Court
Sec. 5(5), Art. VIII of the Constitution provides
that:
a. The SC shall have the power to
promulgate rules concerning:
1. The protection and enforcement of
constitutional rights,
2. Pleading, practice, and procedure in
all courts,
3. Admission to the practice of law,
4. The Integrated Bar, and
5. Legal
assistance
to
the
underprivileged.
The SC has the sole prerogative to amend,
repeal, or even establish new rules for a
more simplified and inexpensive process, and
the speedy disposition of cases. [Neypes v.
CA, G.R. No. 141524 (2005)] Note that the
power to establish procedural rules is no
longer shared by the SC with Congress.
a. Limitations on the Rule-Making
Power of the Supreme Court
The rules of procedure promulgated by the SC
must:
a. Provide a simplified and inexpensive
procedure for speedy disposition of cases,
b. Uniform for all courts of the same grade;
and
c. Not diminish, increase or modify
substantive rights.
[Sec. 5(5), Art. VIII, Constitution]
b. Power of the SC to Amend and
Suspend Procedural Rules
General rule: COMPLIANCE
Compliance with procedural rules is the
general rule, and abandonment thereof should
only be done in the most exceptional
circumstances. [Pilapil v. Heirs of Briones, G.R.
No. 150175 (2007)]
Exception: AMENDMENT OR SUSPENSION
Basis for the SC’s power to amend or suspend
its rules:
1. Rule-Making power vested by the
Constitution, and
2. Sec. 5(g) of Rule 135: Every court shall
have power to amend and control its
process and orders so as to make them
conformable to law and justice.
The power of the SC to suspend its own rules
or to exempt a particular case from its
operation whenever the purposes of justice
require it, cannot be questioned. Substantial
rights must reign supreme over technicalities.
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The overarching aim of procedure is to achieve
substantial justice, hence, the power to
suspend if required in order to achieve the
latter. [De Guzman v. Sandiganbayan, G.R.
No. 103276 (1996)]
The constitutional power of the SC to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the ROC. [Pinga v.
Heirs of Santiago, G.R. No. 170354 (2006)]
Parties praying for a relaxation of procedural
rules must show the need for exceptional
treatment. [Prieto v. Alpadi Development
Corp., G.R. No. 191025 (2013)]
What constitutes good and sufficient cause
that would merit suspension of the rules is
discretionary upon the courts [CIR v. Mirant
Pagbilao Corp., G.R. No. 159593 (2006)]
Reasons which would warrant suspension of
the Rules include:
1. Presence of special and compelling
circumstances,
2. The merits of the case,
3. A cause not entirely attributable to the fault
or negligence of the party favored by the
suspension,
4. A lack of any showing that the review
sought is merely frivolous or dilatory,
5. A showing that the rights of the other party
will not be unjustly prejudiced by the
suspension, [Sarmiento v. Zaratan, G.R.
No. 167471 (2007)]
6. Transcendental matters of life, liberty or
state security, [Mindanao Savings and
Loan Association v. Vda. De Flores, G.R.
No. 142022 (2005)]
7. To relieve a litigant of an injustice
commensurate with his failure to comply
with prescribed procedure, or [Cu-Unjieng
v. CA, G.R. No. 142022 (2005)]
8. Where substantial and important issues
await resolution. [CIR v. Mirant Pagbilao
Corp., G.R. No. 159593 (2006)]
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3. Nature of Philippine Courts
a. Meaning of a Court
A court is an organ of government belonging
to the judicial department, the function of which
is the application of the laws to controversies
brought before it as well as the public
administration of justice. It is also the place
where justice is administered [1 Riano 65, 2014
Bantam Ed., citing Black’s Law Dictionary, Am.
Jur. and C.J.S.]
b. Distinguish: Court vs. Judge
Court
Judge
Tribunal
officially
Officer
of
such
assembled
under
tribunal
authority of law
A being comparable
A physical person
to a corporation
A judge is a public
A court is an office
officer
[1 Riano 65-66, 2014 Bantam Ed.]
A court is an entity possessing a personality
separate and distinct from the men who
compose or sit on it [People v. Carlos, G.R. No.
L-239 (1947)].
Jurisdiction does not attach to the judge
but to the court. The continuity of a court and
the efficacy of its proceedings are not affected
by the death, resignation, or cessation from the
service of the judge presiding over it [ABC
Davao Auto Supply v. CA, G.R. No. 113296
(1998)]
c. Classification
Courts
of
Regular Courts:
a. Supreme Court
b. Court of Appeals
c. Regional Trial Courts
d. Metropolitan Trial Courts
e. Municipal Trial Courts
f. Municipal Circuit Trial Courts
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Special Courts:
a. Sandiganbayan
b. Court of Tax Appeals
d. Courts
of
Original
Appellate Jurisdiction
and
A court is one with original jurisdiction when
actions or proceedings are originally filed with
it.
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A constitutionally-mandated court refers to
a court whose creation by Congress is
mandated by a constitutional provision, of
which there is only one example: the
Sandiganbayan [Sec. 4, Art. XI, Constitution].
While its existence is mandated by the
Constitution, its creation was through and by
P.D. 1486, issued by President Marcos.
g. Courts of Law and Equity
A court is one with appellate jurisdiction when
it has the power of review over the decisions or
orders of a lower court. [1 Riano 47, 2016
Bantam Ed.]
Philippine courts are courts of both law and
equity. Both legal and equitable jurisdictions
are dispensed with in the same tribunal. [US v.
Tamparong, 31 Phil 321-327 (1915)]
Appellate jurisdiction refers to a process which
is but a continuation of the original suit, not a
commencement of a new action [Morales v.
CA, G.R. No. 126623 (1997)]
Equity jurisdiction is used to describe the
power of the court to resolve issues presented
in a case, in accordance with the rules of
fairness and justice, and in the absence of a
clear, positive law governing such issues. [1
Riano 41, 2016 Bantam Ed.]
e. Courts of General and Special
Jurisdiction
Courts of general jurisdiction are those with
competence to decide on their own jurisdiction
and take cognizance of all cases, civil and
criminal, of a particular nature.
Courts of special/limited jurisdiction are
those which have jurisdiction only for a
particular purpose or a clothed with special
powers for the performance of specified duties
beyond which they have no authority of any
kind. [1 Riano 47, 2016 Bantam Ed.]
f. Constitutional
Courts
and
Statutory
A constitutional court is one created by a
direct constitutional provision, an example of
which is the SC. Only the SC is a constitutional
court.
A statutory court is one created by a law other
than the Constitution. All other courts are
statutory courts.
[1 Riano 45-46, 2016 Bantam Ed.]
Equity, which has been aptly described as a
“justice outside legality,” is applied only in the
absence of, and never against, statutory law.
Aequetas nunquam contravenit legis [GF
Equity, Inc. v. Valenzona, G.R. No. 156841
(2005)]
h. Principle of Judicial Hierarchy
Also known as “The Doctrine of Hierarchy of
Courts”
General Rule: A case must be filed with the
lowest court possible having the appropriate
jurisdiction.
For example, although the SC, CA, and the
RTC have concurrent jurisdiction over
certiorari, prohibition, and mandamus, a direct
invocation of the SC is improper. A petition
must be first made to the lowest court - the
RTC. [1 Riano 42, 2016 Bantam Ed]
Exception: The Supreme Court may disregard
hierarchy of courts if warranted by the following
reasons:
1. Where special and important reasons are
present,
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2. When dictated by public welfare and policy,
3. When demanded by interest of justice,
4. Where the challenged orders are patent
nullities,
5. Where compelling circumstances warrant,
and
6. Where genuine issues of constitutionality
must be immediately addressed. [1 Riano
44-45, 2016 Bantam Ed]
Rationale
1. It would be an imposition upon the limited
time of the Court; and
2. It would inevitably result in a delay, in the
adjudication of cases, which are remanded
or referred to the lower court as the proper
forum, or a trier of facts
[People v. Azarraga, G.R. No. 187117 (2011)]
A disregard of the doctrine of hierarchy of
courts warrants, as a rule, the outright
dismissal of a petition [De Castro v. Carlos,
G.R. No. 194994 (2013)]
i. Doctrine of Non-Interference/
Doctrine of Judicial Stability
The Doctrine of Non-Interference/ Doctrine
of Judicial Stability holds that courts of equal
and coordinate jurisdiction cannot interfere with
each other’s orders. [Lapu-Lapu Devt Corp v.
Group Management Corp 388 SCRA 493, 508]
It also bars a court from reviewing or interfering
with the judgment of a co-equal court over
which it has no appellate jurisdiction or power
of review. [Villamor v. Salas 203 SCRA 540,
543]
Note: Such doctrine applies also to
administrative bodies. When the law provides
for an appeal to the CA or SC from the decision
of an administrative body, it means that such
body is co-equal with the RTC and is then
beyond the control of the latter. [Philippine
Sinter Corp v. Cagayan Electric Power and
Light Co. Inc., G.R. No. 127371 (2002)]
in consonance with the well-established
principle that no man shall be affected by any
proceeding to which he is a stranger [Sps.
Crisologo v. Omelio, A.M. No. RTJ-12-2321
(2012), citing Sec. 16, Rule 39, and quoting
Naguit v. CA, G.R. No. 137675 (2000)]
B.
JURISDICTION OF
COURTS
Jurisdiction is the power of the court to hear,
try, and decide a case. [Cuenca v. PCGG,
535 SCRA 102]
In its expanded concept, it includes the
authority of the court to execute its
decisions since such is an essential aspect of
jurisdiction and is the most important part of
litigation [Echegaray v. Sec. of Justice, G.R.
No. 132601 (1999)]
Note: Jurisdiction is not the authority of the
judge to hear a case, but that of the court.
Jurisdiction over a case attaches to the court,
and not the judge hearing it. It is not the
decision rendered, but rather the authority of
the court to decide the case.
1. Classification of Jurisdiction
a. Distinguish:
Appellate
Original
Original
and
Appellate
A court is one with
appellate jurisdiction
when it has the
power to review on
appeal the decisions
or orders of a lower
court.
[1 Riano 47, 2016 Bantam Ed.]
A court is one with
original jurisdiction
when actions or
proceedings may be
originally filed with it.
When not applicable
The doctrine of judicial stability does not apply
where a third party claimant is involved – this is
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b. Distinguish:
Special
General
and
General
Special
Courts of special
jurisdiction are those
Courts of general
which
have
jurisdiction
are
jurisdiction only for a
those
with
particular purpose or
competence
to
clothed with special
decide on their own
powers
for
the
jurisdiction and take
performance
of
cognizance of all
specified
duties
cases of a particular
beyond which they
nature.
have no authority of
any kind.
[1 Riano 47, 2016 Bantam Ed.]
c. Distinguish:
Concurrent
Exclusive
Exclusive
jurisdiction
precludes the idea of
co-existence
and
refers to jurisdiction
possessed to the
exclusion of others.
[Cubero v. Laguna
West Multi-Purpose
Cooperatives, Inc.,
G.R. No. 166833
(2006)]
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CIVIL PROCEDURE
Exclusive
and
Concurrent/
Coordinate
Concurrent
jurisdiction is also
called
coordinate
jurisdiction. It is the
power of different
courts
to
take
cognizance of the
same subject matter.
Where
such
jurisdiction
exists,
the court first taking
cognizance of the
case
assumes
jurisdiction to the
exclusion of the
other courts.
[1 Riano 49, 2016 Bantam Ed.]
2. Doctrines of Hierarchy
Courts and Continuity
Jurisdiction
of
of
Doctrine of Hierarchy of Courts
According to the doctrine of hierarchy of courts,
in case of concurrence of jurisdiction, a case
must be filed first before the lowest court
possible EXCEPT if one can advance a
special reason which would allow a part to
directly resort to a higher court. [1 Riano 43,
2016 Bantam Ed.]
Doctrine of Continuity of Jurisdiction
Also known as the doctrine of adherence of
jurisdiction.
Once jurisdiction is vested, the same is
retained up to the end of the litigation. [De la
Rosa v. Roldan, G.R. No. 133882 (2006)]
3. Jurisdiction
Courts
Of
Philippine
a. Supreme Court
General Rule: The SC is not a trier of facts.
Exception: The SC can look into the facts of a
case:
1. When the conclusion is a finding grounded
entirely on speculation, surmises and
conjectures;
2. When the inference made is manifestly
mistaken, absurd or impossible;
3. Where there is a grave abuse of discretion;
4. When the judgment is based on a
misapprehension of facts;
5. When the findings of fact are conflicting;
6. When the Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and appellee;
7. When the findings are contrary to those of
the trial court;
8. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
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9. When the facts set forth in the petition as
well as in the petitioners' main and reply
briefs are not disputed by the respondents;
and
10. When the findings of fact of the Court of
Appeals are premised on the supposed
absence of evidence and contradicted by
the evidence on record. [Aklan v. Enero,
G.R. No. 178309, January 27, 2009]
Agency, the petition shall only be
cognizable by the CA and must be
filed there
b.
c.
d.
e.
f.
EXCLUSIVE ORIGINAL JURISDICTION
Petitions for certiorari, prohibition, and
mandamus against appellate courts, namely:
a. Court of Appeals, [Sec. 17, R.A. 296]
b. Commission on Elections, [Sec 7, Art. IX,
Constitution]
c. Commission on Audit, [Sec. 7, Art. IX,
Constitution]
d. Sandiganbayan, and [P.D. 1606 as
amended]
[1 Riano 106, 2014 Bantam Ed.]
e. Court of Tax Appeals (not en banc). [1
Riano 92, 2016 Bantam Ed.] (if en banc,
SC in appellate jurisdiction)
CONCURRENT ORIGINAL JURISDICTION
1. With CA
a. Petitions for certiorari, prohibition, and
mandamus against first-level courts
and bodies, namely
i.
RTCs [Sec. 21(1), B.P. 129]
ii.
Civil Service Commission [R.A.
7902]
iii.
Central Board of Assessment
Appeals [P.D. 464; B.P. 129; R.A.
7902]
iv.
NLRC and [St. Martin Funeral
Homes v. NLRC, G.R. No. 130866
(1998); R.A. 7902]
v.
Other Quasi-Judicial Agencies.
[B.P. 129; R.A. 7902; Heirs of
Hinog v. Melicor, G.R. No. 140954
(2005) [1 Riano 106-107, 2014
Bantam Ed.]
Note: Although there is concurrent
jurisdiction as the Constitution grants
this to the SC, SC A.M. No. 07-7-12
issued on 4 December 2007 provides
that if the petition involves an
act/omission of a Quasi-Judicial
REMEDIAL LAW
Quo Warranto petitions,
Writ of Habeas Corpus,
Writ of Amparo,
Writ of Habeas Data, and [1 Riano 9394, 2016 Bantam Ed.]
Writ of KaIikasan. [Sec. 3, Rule 7, Part
3,
Rules
of
Procedure
for
Environmental Cases]
2. With RTC
a. Cases affecting ambassadors, public
ministers, and consuls [Sec. 21(2),
B.P. 129]
b. Petitions for certiorari, prohibition, and
mandamus against lower courts [1
Riano 93, 2016 Bantam Ed.]
c. Quo Warranto petitions,
d. Writ of Habeas Corpus,
e. Writ of Amparo, and
f. Writ of Habeas Data.
3. With Sandiganbayan
a. Writ of Amparo, and
b. Writ of Habeas Data.
APPELLATE JURISDICTION
SC has appellate jurisdiction over petitions for
review on certiorari (appeal by certiorari under
Rule 45) against the
a. CA,
b. Sandiganbayan,
c. RTC with respect to:
1. Pure questions of law [Sec. 1, Rule
45] and
2. Cases falling under Sec. 5, Art. VIII,
Constitution
(i)
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.
(ii)
All cases involving the legality of
any tax, impost, assessment, or
toll, or any penalty imposed in
relation thereto.
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(iii)
All cases in which the jurisdiction
of any lower court is in issue,
(iv)
All criminal cases in which the
penalty imposed is reclusion
perpetua or higher, and
(v)
All cases in which only an error or
question of law is involved, and
[Sec. 5(2), Art. VIII, Constitution]
d. CTA in its decisions rendered en banc
[1 Riano 107, 2014 Bantam Ed.]
e. MTC in the exercise of their delegated
jurisdiction, where the decision, had it been
rendered by RTC, would be appealable
directly to the SC. [Sec. 34, B.P. 129, as
amended] Such is the case because the
MTC, when acting under delegated
jurisdiction, is deemed to be acting as an
RTC. [1 Riano 106, 2016 Bantam Ed.]
Only pure questions of law are involved when
no evidentiary matters are to be evaluated by
the SC. If the only issue is whether or not the
conclusions of the trial court are in consonance
with law and jurisprudence, then the issue is a
pure question of law [Urbano v. Chavez, G.R.
No. 87977 (1990)]
Note that the SC has held that appeals from
quasi-judicial agencies – even only on a
question of law alone – may be brought to the
CA, via Rule 43 of the ROC. This constitutes
an exception to the general rule that
appeals on pure questions of law are
brought to the SC [Santos v. Committee on
Claims Settlement, G.R. No. 158071 (2009)]
(also see (a)(1)(v) under concurrent jurisdiction
of the SC)
b. Court of Appeals
EXCLUSIVE ORIGINAL JURISDICTION
Actions for annulment of judgments of the RTC
[see: Sec. 9(2), B.P. 129; Sec. 1, Rule 47]
CONCURRENT ORIGINAL JURISDICTION
1. With SC
a. Petitions for certiorari, prohibition, and
mandamus against first-level courts
and bodies, namely
i.
RTCs [Sec. 21(1), B.P. 129]
ii.
Civil Service Commission [R.A.
7902]
iii.
Central Board of Assessment
Appeals [P.D. 464; B.P. 129; R.A.
7902]
iv.
NLRC and [St. Martin Funeral
Homes v. NLRC, G.R. No. 130866
(1998); R.A. 7902]
v.
Other Quasi-Judicial Agencies.
[B.P. 129; R.A. 7902; Heirs of
Hinog v. Melicor, G.R. No. 140954
(2005) [1 Riano 106-107, 2014
Bantam Ed.]
b. Quo Warranto petitions,
c. Writ of Habeas Corpus,
d. Writ of Amparo,
e. Writ of Habeas Data, and [1 Riano 9394, 2016 Bantam Ed.]
f. Writ of KaIikasan. [Sec. 3, Rule 7, Part
3,
Rules
of
Procedure
for
Environmental Cases]
2. With RTC
a. Petitions for certiorari, prohibition and
mandamus against lower courts and
bodies
b. Quo warranto petitions, and
c. Writ of Habeas Corpus [1 Riano 96,
2016 Bantam Ed.]
d. Writ of Amparo, and [Sec. 3, Rule on
the Writ of Amparo]
e. Writ of Habeas Data [Sec. 3, Rule on
the Writ of Habeas Data]
3. With Sandiganbayan
a. Writ of Amparo, and
b. Writ of Habeas Data
APPELLATE JURISDICTION
1. By ordinary appeal
a. From judgments of RTC and Family
Courts, [Sec. 9(3), B.P. 129, as
amended; Sec. 14, R.A. 8369]
b. Over decisions of the MTCs in
cadastral or land registration cases
pursuant to its delegated jurisdiction.
[Sec. 34, B.P. 129, as amended by
R.A. 7691]
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2. By petition for review
a. From judgments of the RTC rendered
in its appellate jurisdiction, and [Sec.
22, B.P. 129, as amended; Rule 42;
Sec. 9, B.P. 129]
b. From decisions, resolutions, orders or
awards
of
the
Civil
Service
Commission and other quasi-judicial
bodies mentioned in Rule 43. [Sec.
9(3), B.P. 129]
Note: The enumeration of quasi-judicial
agencies under Sec. 1, Rule 43 is not
exclusive [Wong v. Wong, G.R. No.
180364 (2014), quoting Cayao-Lasam v.
Sps. Ramolete, G.R. No. 159132 (2008)]
3. From decisions of the Office of the
Ombudsman
in
administrative
disciplinary cases
[1 Riano 96-97, 2016 Bantam Ed.]
c. Court of Tax Appeals
EXCLUSIVE ORIGINAL JURISDICTION
1. Over 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 P1,000,000 shall be
tried by the proper Municipal Trial Court
Metropolitan Trial Court, and Regional Trial
Court.
APPELLATE JURISDICTION
1. Exclusive appellate jurisdiction in tax
collection cases:
a. Over appeals from the judgements,
resolutions or orders of the Regional
Trial Courts in tax collection cases
originally decided by them, in their
respective territorial jurisdiction.
b. Over petitions for review of the
judgments, resolutions, or orders of the
Regional Trial Courts in the exercise of
their appellate jurisdiction over tax
collection cases originally decided by
the Metropolitan Trial Courts, Municipal
Trial Courts, and the Municipal Circuit
REMEDIAL LAW
Trial Courts, in their respective
jurisdictions.
2. Exclusive appellate jurisdiction to review by
appeal:
a. Decision of the Commissioner of
Internal Revenue in cases involving
disputed assessments, refunds of
internal revenue taxes, fees, or other
charges, penalties in relation thereto,
or other matters arising under the
National Internal Revenue Code or
other laws administered by the Bureau
of Internal Revenue.
b. Inaction by the Commissioner of
Internal Revenue in cases involving
disputed assessments, refunds of
internal revenue taxes, fees, or other
charges, penalties in relation thereto,
or other matters arising under the
National Internal Revenue Code or
other laws administered by the Bureau
of Internal Revenue, where the
National Internal Revenue Code
provides a specific period of action, in
which case the inaction shall be
deemed a denial.
c. Decision, orders or resolutions of the
Regional Trial Courts in the local tax
cases originally decided oy resolved by
them in the exercise of their original or
appellate jurisdiction.
d. Decisions of the Commissioner of
Customs in cases involving liability for
customs duties, fees, or other money
charges, seizure, detention or release
of property affected, fines, forfeitures or
other penalties in relation thereto, or
other matters arising under the
Customs
Law
or
other
laws
administered by the Bureau of
Customs.
e. Decisions of the Central Board of
Assessment Appeals, in the exercise of
its appellate jurisdiction, over cases
involving the assessment and taxation
of real property originally decided by
the provincial or city board of
assessment appeals.
f. Decisions of the Secretary of Finance
on customs duties elevated to him
automatically for review from decisions
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of the Commissioner of Customs which
are adverse to the Government under
Sec. 2315 of the Tariff and Customs
Code.
g. Decisions of the Secretary of Trade
and Industry in the case of
nonagricultural product, commodity, or
article, and the Secretary of Agriculture
in the case of an agricultural product,
commodity,
or
article
involving
dumping and countervailing duties
under Secs. 301 and 302, respectively,
of the Tariff and Customs Code, and
safeguard measures under RA 8800,
where either party may appeal the
decision to impose or not to impose
said duties.
[1 Riano 98-100, 2016 Bantam Ed.]
d. Sandiganbayan
EXCLUSIVE ORIGINAL JURISDICTION
a. Violations of R.A. 3019 or the Anti-Graft
and Corrupt Practices Act
b. Violations of R.A. 1379 or An Act Declaring
Forfeiture in Favor of the State Any
Property Found to Have Been Unlawfully
Acquired by Any Public Officer or
Employee and Providing for the
Proceedings Therefor
c. Bribery (Chapter II, Sec. 2, Title VII, Book
II, RPC), where one or more of the principal
accused are occupying the following
positions in government, whether in a
permanent, acting or interim capacity, at
the time of the commission of the offense
1. Officials of the executive branch
occupying the positions of regional
director
and
higher,
otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 (R.A. 6758),
specifically including:
● Provincial
governors,
vicegovernors, members of the
sangguniang panlalawigan, and
provincial treasurers, assessors,
engineers, and other provincial
department heads
● City
mayors,
vice-mayors,
members of the sangguniang
2.
3.
4.
5.
REMEDIAL LAW
panlungsod,
city
treasurers,
assessors, engineers, and other
city department heads
● Officials of the diplomatic service
occupying the position of consul
and higher
● Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
● Officers of the Philippine National
Police while occupying the position
of provincial director and those
holding the rank of senior
superintendent and higher
● City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman
and
special
prosecutor;
● Presidents, directors or trustees, or
managers of government-owned or
controlled
corporations,
state
universities
or
educational
institutions or foundations
Members of Congress and officials
thereof classified as Grade 27 and up
under R.A. 6758
Members of the Judiciary without
prejudice to the provisions of the
Constitution
Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution
All other national and local officials
classified as Grade 27 and higher
under R.A. 6758
Note: Exclusive original jurisdiction shall be
vested in the proper RTC or MTC, as the
case may be, where none of the accused
are occupying positions corresponding to
Salary Grade 27 or higher, or military and
PNP officers mentioned above [Sec. 4,
P.D. 1606, as amended by R.A. 10660]
d. Other offenses or felonies whether
simple or complexed with other crimes
committed by the public officials and
employees mentioned in subsection a. of
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section 4 (as amended) in relation to their
office
e. Civil and criminal cases filed pursuant to
and in connection with E.O. Nos. 1, 2,
14-A
f. Petitions for mandamus, prohibition,
certiorari, habeas corpus, injunctions, and
other ancillary writs and processes in aid
of its appellate jurisdiction, and petitions of
similar nature, including quo warranto,
arising or that may arise in cases filed or
which may be filed under Executive
Order Nos. 1, 2, 14 and 14-A, issued in
1986
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
CONCURRENT ORIGINAL JURISDICTION
With SC, CA, and RTC for petitions for writs of
amparo [Sec. 3, Rule on the Writ of Amparo]
and habeas data [Sec. 3, Rule on the Writ of
Habeas Data]
APPELLATE JURISDICTION
The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of the RTC, whether in the
exercise of their own original jurisdiction or of
their appellate jurisdiction, as herein provided
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
e. Regional Trial Courts
EXCLUSIVE ORIGINAL JURISDICTION
a. All civil actions in which the subject of the
litigation is incapable of pecuniary
estimation [Sec. 19(1), B.P. 129, as
amended by R.A. 7691]
Test: If it is primarily for the recovery of a
sum of money, the claim is considered
capable of pecuniary estimation. On the
other hand, where the basic issue is
something other than the right to recover a
sum of money, and the money claim is
purely incidental to, or a consequence of,
the principal relief sought, such actions are
cases where the subject of the litigation is
incapable of pecuniary estimation. [Heirs of
Padilla v. Magdua, G.R. No. 176858
(2010), quoting Singson v. Isabela Sawmill,
G.R. No. L-27343 (1979)]
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An action to nullify a Deed of
Assignment and Conveyance is not one
involving a subject matter incapable of
pecuniary estimation if the plaintiff also
seeks to the transfer of possession and
control of properties: In Home Guaranty
v. R-II Builders [G.R. No. 192649 (2011)],
an action that sought the nullification of a
Deed of Assignment and Conveyance was
characterized by the respondent on an MR
before the SC as one involving a subject
matter incapable of pecuniary estimation.
The SC disagreed and held that since the
action was not solely for the annulment of
the Deed of Assignment and Conveyance
– indeed, the respondent consistently
sought the transfer of possession and
control of properties – following the its
ruling in Ruby Shelter Builders and Realty
Development Corp. v. Formaran III, G.R.
No. 175914 (2009), the subject of the
action was capable of pecuniary
estimation.
However, if the principal nature of an
action to cancel a contract to sell, where
the defendant has already taken
possession of the property, involves a
determination on whether a suspensive
condition has been fulfilled – then the
subject matter involved is one that is
incapable of pecuniary estimation: In
Olivarez Realty v. Castillo [G.R. No.
196251 (2014)], the action instituted in the
trial court was one for the cancellation of a
contract to sell, and prior to the institution
of the action the defendant had already
proceeded to occupy the property involved.
In this instance, the SC held that the action
involved a subject matter that was
incapable of pecuniary estimation. The
difference in the ruling of the SC here and
in Home Guaranty lies in that fact that in
Olivarez Realty, what the plaintiff had
principally sought was a determination that
a suspensive condition for the perfection of
the contract had not been fulfilled: “the trial
court principally determined whether
Olivarez Realty Corporation failed to pay
installments of the property’s purchase
price as the parties agreed upon in the
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deed of conditional sale. The principal
nature of Castillo’s action, therefore, is
incapable of pecuniary estimation.”
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[Heirs of Sebe v. Heirs of Sevilla, G.R. No.
174497 (2009)]
An expropriation suit is incapable of
pecuniary estimation [Barangay San
Roque v. Heirs of Francisco Pastor, G.R.
No. 138896 (2000)]
c. Any action if the amount involved
exceeds P300,000 outside Metro Manila
or exceeds P400,000 in Metro Manila in
the following cases [B.P. 129, as amended
by R.A. 7691]:
1. Actions in admiralty and maritime
jurisdiction, where the amount refers
to demand or claim [Sec. 19(3)]
2. Matters of probate (testate or
intestate), where the amount refers to
gross value of estate [Sec. 19(4)]
3. In all other cases where the amount
refers to the demand, exclusive of
interest, damages of whatever kind,
attorney’s fees, litigation expenses,
and costs [Sec. 19(8)]
Lastly,
an
action
for
specific
performance in one incapable of
pecuniary estimation. [Russel v. Vestil, 304
SCRA 738 (1999)] Any amount of
damages claimed in addition to the prayer
for
specific
performance
is
not
determinative of jurisdiction. [1 Riano 135,
2016 Bantam Ed.]
d. All actions involving the contract of
marriage and family relations [Sec.
19(5), B.P. 129, as amended by R.A.
7691], and all civil actions and special
proceedings falling within exclusive original
jurisdiction of Juvenile and Domestic
Relations Court [Sec. 19(7), B.P. 129, as
amended by R.A. 7691]
b. Civil actions involving title to, or
possession of real property, or any
interest therein, where assessed value
exceeds P20,000 outside Metro Manila,
or exceeds P50,000 in Metro Manila [Sec.
19(2), B.P. 129, as amended by R.A. 7691]
Note: This jurisdiction is deemed modified
by Sec. 5, R.A. 8369, the law establishing
the Family Courts. However, in areas
where there are no Family Courts, the
cases within their jurisdiction shall be
adjudicated by the RTC [Sec. 17, R.A.
8369; 1 Riano 147, 2014 Bantam Ed.]
See also: Heirs of Bautista v. Lindo [G.R.
No. 208232 (2014)], where an action to
redeem a land subject of a free patent was
characterized by the SC as one whose
subject matter was incapable of
pecuniary
estimation
since
the
reacquisition of the land was merely
incidental to and an offshoot of the exercise
of the right to redeem the land, pursuant to
Sec. 119 of CA 141.
Exception: Forcible entry and unlawful
detainer (FEUD) cases, as FEUD cases
are within the exclusive original jurisdiction
of the MTC. [Sec. 33(2), B.P. 129, as
amended by R.A. 7691]
An action "involving title to real property"
means that the plaintiff's cause of action is
based on a claim that he owns such
property or that he has the legal rights to
have exclusive control, possession,
enjoyment, or disposition of the same. Title
is the "legal link between (1) a person who
owns property and (2) the property itself."
e. All civil actions and special proceedings
falling
within
exclusive
original
jurisdiction of the Court of Agrarian
Reform [Sec. 19(7), B.P. 129, as amended
by R.A. 7691]
f.
Page 12 of 525
All cases not within exclusive
jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial
functions [Sec. 19(6), B.P. 129, as
amended by R.A. 7691] This jurisdiction is
often described as the “general
jurisdiction” of the RTC making it a court
U.P. LAW BOC
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of general jurisdiction. [1 Riano 146, 2014
Bantam Ed.]
g. Intra-corporate controversies
1. Cases involving devises or schemes
employed by or any acts, of board of
directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which
may be detrimental to interest of public
and/or of stockholders, partners,
members
of
associations
or
organizations registered with SEC
2. Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates; between any
or all of them and corporation,
partnership or association of which
they are stockholders, members or
associates, respectively; and between
such corporation, partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
3. Controversies
in
election
or
appointments of directors, trustees,
officers or managers of such
corporations,
partnerships
or
associations
4. Petitions of corporations, partnerships
or associations to be declared in state
of suspension of payments in cases
where corporation, partnership of
association
possesses
sufficient
property to cover all its debts but
foresees impossibility of meeting them
when they respectively fall due or in
cases where corporation, partnership
or association has no sufficient assets
to cover its liabilities, but is under
management of a Rehabilitation
Receiver or Management Committee
[Sec. 52, Securities and Regulations Code]
h. Petitions for declaratory relief [Sec. 1,
Rule 63]
i.
Cases originally falling within the exclusive
original jurisdiction of the Sandiganbayan
where the information:
REMEDIAL LAW
1. Does not allege any damage to the
government or any bribery; or
2. Alleges damage to the government or
bribery arising from the same or closely
related transactions or acts in an
amount not exceeding P1 million. [Sec.
4, P.D. 1606, as amended by R.A.
10660]
CONCURRENT ORIGINAL JURISDICTION
1. With SC
a. Cases affecting ambassadors, public
ministers, and consuls [Sec. 21(2),
B.P. 129]
b. Petitions for certiorari, prohibition, and
mandamus against lower courts [1
Riano 93, 2016 Bantam Ed.]
c. Quo Warranto petitions,
d. Writ of Habeas Corpus,
e. Writ of Amparo, and
f. Writ of Habeas Data
2. With CA
a. Petitions for certiorari, prohibition and
mandamus against lower courts and
bodies
b. Quo warranto petitions, and
c. Writ of Habeas Corpus [1 Riano 96,
2016 Bantam Ed.]
d. Writ of Amparo, and [Sec. 3, Rule on
the Writ of Amparo]
e. Writ of Habeas Data [Sec. 3, Rule on
the Writ of Habeas Data]
3. With Sandiganbayan
a. Writ of Amparo, and
b. Writ of Habeas Data
APPELLATE JURISDICTION
Appellate jurisdiction over cases decided by
lower courts (i.e. MTC) in their respective
territorial jurisdictions, except those made in
the exercise of delegated jurisdiction, which
are appealable in the same manner as
decisions of the RTC. [Sec. 34, B.P. 129, as
amended]
SPECIAL JURISDICTION
Special jurisdiction - SC may designate
certain branches of RTC to try exclusively
criminal cases, juvenile and domestic relations
Page 13 of 525
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cases, agrarian cases, urban land reform
cases not falling within the jurisdiction of any
quasi-judicial body and other special cases in
the interest of justice [Sec. 23, B.P. 129]
f. Family Courts
a. Criminal cases where one or more accused
is below 18 but not less than 9 years old or
where one or more victims was a minor at
time of commission of offense,
b. Petitions for guardianship, custody of
children and habeas corpus in relation to
children,
c. Petitions for adoption of children and
revocation thereof,
d. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together
under different status and agreements, and
petitions for dissolution of conjugal
partnership of gains,
e. Petitions
for
support
and/or
acknowledgment,
f. Summary judicial proceedings brought
under the provisions of Family Code,
g. Petitions for declaration of status of
children as abandoned, dependent or
neglected children, voluntary or involuntary
commitment of children, suspension,
termination or restoration of parental
authority, and other cases cognizable
under P.D. 603, E.O. 56, s. 1986, and other
related laws,
h. Petitions for constitution of family home,
i. Cases against minors cognizable under
Dangerous Drugs Act, as amended, (now
R.A. 9165)
j. Violations of R.A. 7610, or the “Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act”, and
k. Cases of domestic violence against
Women and Children.
[Sec. 5, R.A. 8369]
REMEDIAL LAW
g. Metropolitan
Trial
Courts,
Municipal
Trial
Courts,
Municipal Trial Courts in Cities,
Municipal Circuit Trial Courts
EXCLUSIVE ORIGINAL JURISDICTION
a. Where the value of personal property,
estate, or amount of demand does not
exceed P300,000 outside Metro Manila
or does not exceed P400,000 in Metro
Manila, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation
expenses, and costs, in the following
cases:
1. Civil actions,
2. Probate proceedings, (testate or
intestate)
3. Provisional remedies in proper cases.
[Sec. 33(1), B.P. 129, as amended by
R.A. 7691]
Totality Rule
If several claims or causes of action are
embodied in the same complaint, the amount
of all the demands shall be the basis in
computation of the amount involved, if
1. Claims are in the same complaint
2. Claims are against the same defendant
3. No misjoinder of parties [1 Riano 104,
2016 Bantam Ed.]
b. Forcible entry and unlawful detainer
(FEUD)
Note: When defendant raises questions of
ownership in his pleadings and the
question of possession cannot be resolved
without deciding issue of ownership, the
latter issue shall be resolved only to
determine the former issue [Sec. 33(2),
B.P. 129, as amended by R.A. 7691]
c. All civil actions involving title to, or
possession of, real property, or any
interest therein where assessed value of
property or interest therein does not
exceed P20,000 outside Metro Manila, or
does not exceed P50,000 in Metro Manila
[Sec. 33(3), B.P. 129, as amended by R.A.
7691]
d. Inclusion and exclusion of voters [Sec.
49, Omnibus Election Code]
Page 14 of 525
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SPECIAL JURISDICTION
Special jurisdiction over petition for writ of
habeas corpus OR application for bail in
criminal cases in the absence of all RTC
judges in the province or city. [Sec. 35, B.P.
129]
DELEGATED JURISDICTION OF THE MTC
Delegated jurisdiction of 1st level courts
assigned by SC to hear and decide cadastral
and land registration cases covering
a. Lots where there is no controversy or
opposition
b. Contested lots the value of which does
not exceed P100,000, the value is to be
ascertained:
1. By the claimant’s affidavit
2. By agreement of the respective
claimants, if there are more than one;
or
3. From corresponding tax declaration of
the real property
MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions, since MTCs acting
in their delegated capacity are treated
under law like RTCs.
[Sec. 34, B.P. 129, as amended by R.A. 7691]
DIFFERENCE BETWEEN 1ST LEVEL
COURTS
1. Metropolitan Trial Court – in each
metropolitan area established by law [Sec.
25, B.P. 129], particularly Metro Manila
[Sec. 27, B.P. 129]
2. Municipal Trial Courts in Cities – In every
city not part of a metropolitan area [Sec. 29,
B.P. 129]
3. Municipal Circuit Trial Court – in each
circuit comprising such cities and
municipalities grouped together pursuant
to law [Sec. 25, B.P. 129]
4. Municipal Trial Courts – in municipalities
not comprised within a metropolitan area
and a municipal circuit [Sec. 30, B.P. 129]
REMEDIAL LAW
4. Aspects of Jurisdiction
a. Jurisdiction over the Parties
Jurisdiction over the parties refers to the
power of the court to make decisions that are
binding on persons. [De Pedro v. Romansan
Development Corp, G.R. No. 194751 (2014)]
It is also called jurisdiction in personam
which is the power required before a court can
enter a personal or an in personam judgment.
[Pennoyer vs Neff, 95 US 714 (1878)]
It is an element of due process that is essential
in all actions, civil or criminal, except in actions
in rem or quasi in rem. [Guy v. Gacott, G.R. No.
206147 (2016)]
Kinds:
a. Over the plaintiff
b. Over the defendant
c. Over non-parties – It is a principle of
equity that jurisdiction over a person not
formally or originally a party to a litigation
may nevertheless be acquired, under
proper conditions, through the voluntary
appearance of that person before the court.
[Rodriguez v. Alikpala, G.R. No. L-38314
(1974)]
i. How jurisdiction over the plaintiff
is acquired
Courts acquire jurisdiction over a party plaintiff
upon the filing of the complaint [De Pedro v.
Romansan Development Corp, G.R. No.
194751 (2014)]
By the mere filing of the complaint, the plaintiff,
in a civil action, voluntarily submits himself to
the jurisdiction of the court. [Guy v. Gacott,
G.R. No. 206147 (2016)]
Page 15 of 525
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ii. How
jurisdiction
over
defendant is acquired
the
Jurisdiction over the person of the defendant is
acquired:
1. By his voluntary appearance in court and
his submission to its authority, or
2. By service of summons.
[Sec. 20, Rule 14; Macasaet v. Co, G.R. No.
156759 (2013)]
Voluntary Appearance of the defendant gives
the court jurisdiction over his person despite
lack of service of summons or a defective
service of summons. Since his voluntary
appearance in the action shall be equivalent to
service of summons.
For
further
discussion
on
voluntary
appearance, see section on Summons.
b. Jurisdiction over the Subject
Matter
i. Meaning of Jurisdiction over the
Subject Matter
Jurisdiction over the subject matter is the
power of a particular court to hear the type of
case that is then before it [1 Riano 71, 2014
Bantam Ed., citing Black’s Law Dictionary 767,
5th Ed.]
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz, G.R. No. L48754 (1941)]
Subject matter jurisdiction simply refers to the
judicial power that has been vested in a
specific type of court by the legal system, in
terms of what kinds of action it can decide and
what powers it can exercise in relation thereto.
[Prof. Avena]
ii. Distinguish:
Jurisdiction
Exercise of Jurisdiction
and
REMEDIAL LAW
Exercise of Jurisdiction is the exercise of
such power or authority. Where there is
jurisdiction over the person and the subject
matter, the decision on all other questions
arising in the case is an exercise of that
jurisdiction. [Republic v. G Holdings, Inc, G.R.
No. 141241 (2005)]
iii. How Jurisdiction is Conferred and
Determined
Jurisdiction over the subject matter of a case is
conferred by law and determined by the
allegations in the complaint which comprise
a concise statement of the ultimate facts
constituting the plaintiff's cause of action.
[Medical Plaza Makati Condominium v. Cullen,
G.R. No. 181416 (2013)]
The allegations in the body of the complaint
define the cause of action. The caption or title
of the cause of action is not controlling. [Dela
Cruz v. CA, G.R. No. 139442 (2006)]
Consequences of rule that jurisdiction is
conferred by law; it cannot be:
a. Conferred by voluntary act or agreement of
the parties,
b. Acquired, waived, enlarged, or diminished
by any act or omission of the parties, or
c. Conferred by the acquiescence of the
courts,
[De la Rosa v. Roldan, G.R. No. 133882
(2006)]
d. Conferred by administrative policy of any
court, or [Arranza v. B.F. Homes, Inc., G.R.
No. 131683 (2000)]
e. Conferred by a court’s unilateral
assumption of jurisdiction. [Tolentino v.
Social Security Commission, G.R. No. L28870 (1985)]
[1 Riano 75-76, 2014 Bantam Ed.]
Jurisdiction is not affected by the pleas set up
by the defendant in his answer or in a motion
to dismiss, otherwise, jurisdiction would be
dependent on his whims. [Sindico v. Diaz, G.R.
No. 147444 (2004)]
Jurisdiction is the authority to decide a case.
It is the power of the court.
Page 16 of 525
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CIVIL PROCEDURE
iv. Distinguish: Doctrine of Primary
Administrative Jurisdiction and
Doctrine
of
Exhaustion
of
Administrative Remedies
General Rule: The doctrine of primary
jurisdiction holds that if a case is such that its
determination
requires
the
expertise,
specialized training and knowledge of the
proper administrative bodies, relief must first
be obtained in an administrative proceeding
before a remedy is supplied by the courts even
if the matter may well be within their proper
jurisdiction. [Province of Aklan v. Jody King
Construction and Dev’t Corp., G.R. No. 197592
(2013)]
The objective of the doctrine of primary
jurisdiction is to guide the court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court. [Province of Aklan v. Jody
King Construction and Dev’t Corp., G.R. No.
197592 (2013)]
Exceptions:
a. Where there is estoppel on the part of the
party invoking the doctrine,
b. Where the challenged administrative act is
patently illegal, amounting to lack of
jurisdiction,
c. Where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant,
d. Where the amount involved is relatively
small,
e. Where the question involved is purely legal
and will ultimately have to be decided by
the courts,
f. Where judicial intervention is urgent,
g. When its application may cause great and
irreparable damage,
h. Where the controverted acts violate due
process,
i. When the issue of non-exhaustion of
administrative
remedies
has
been
rendered moot,
j. When there is no other plain, speedy,
adequate remedy,
k. When strong public interest is involved,
and
l. In quo warranto proceedings.
[Province of Aklan v. Jody King Construction
and Dev’t Corp., G.R. No. 197592 (2013)]
The doctrine of primary jurisdiction is corollary
to the doctrine of exhaustion of
administrative remedies in which courts
cannot determine a controversy involving a
question which is within the jurisdiction of the
administrative tribunal prior to the resolution of
that question by the administrative tribunal.
[International
Service
v.
Greenpeace
Southeast Asia, G.R. No. 209271 (2015)]
v. Doctrine
of
Jurisdiction
Adherence
of
Also known as doctrine of continuity of
jurisdiction [1 Riano 85-86, 2014 Bantam Ed.]
Once the jurisdiction of a court attaches, it
continues until the case is finally
terminated. The trial court cannot be ousted
therefrom by subsequent happenings or
events, although of a character that would have
prevented jurisdiction from attaching in the first
instance [Baritua v. Mercader, G.R. No.
136048 (2001)]
General Rule:
Where a court has already obtained and is
exercising jurisdiction over a controversy, its
jurisdiction to proceed to the final determination
of the case is not affected by new legislation
placing jurisdiction over such proceeding in
another tribunal [Southern Food v. Salas, G.R.
No. 56428 (1992)]
Exceptions:
a. Where there is an express provision in the
statute; and
b. The statute is clearly intended to apply to
actions pending before its enactment
[People v. Cawaling, G.R. No. 117970 (1998);
Southern Food v. Salas, G.R. No. 56428
(1992)]]
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vi. Objections to Jurisdiction over the
Subject Matter
which it has actively participated [Francel
Realty Corp. v. Sycip, G.R. No. 154684 (2005)]
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 claim. [Sec. 1, Rule 9]
Note: Tijam v. Sibonghanoy must be
construed as an exception to the general
rule and applied only in the most exceptional
cases where the factual milieu is similar to that
in the said case [Figueroa v. People, G.R. No.
147406 (2008)]
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 [SEAFDEC v. NLRC, G.R. No.
86773 (1992)]
Under the Amended Rules, a motion to
dismiss is now a prohibited motion, but one of
the exceptions provided is the ground of lack
of jurisdiction over the subject matter of the
claim. [Sec. 12, Rule 15] Moreover, under the
Amended Rules, lack of jurisdiction over the
subject matter is also an affirmative defense
which can be raised in a defendant’s answer.
[Sec. 12(d), Rule 8 in relation to Sec. 5(b), Rule
6]
Note: Even if Sec. 12(b), Rule 8 of the
Amended Rules provides that the failure to
raise an affirmative defense at the earliest
opportunity constitutes a waiver thereof, the
failure to raise lack of jurisdiction over the
subject matter as an affirmative defense in
the answer does not waive such defense.
The retention of Sec. 1, Rule 9 maintains the
status of lack of jurisdiction over the subject
matter as a non-waivable defense. As such,
the proper action if one failed to raise the
court’s lack of jurisdiction over the subject
matter in the answer would be to file a motion
to dismiss, which can be filed at any point
during the proceedings, subject to the doctrine
in Tijam.
vii. Effect of Estoppel on Objection to
Jurisdiction
General rule:
Lack of jurisdiction over the subject matter may
be raised at any stage of the proceedings,
even for the first time on appeal. The reason for
this is that jurisdiction is conferred by law, and
lack of it affects the very authority of the court
to take cognizance of the action [Asiatrust
Development Bank v. First Aikka Development,
Inc., G.R. No. 179558 (2011)]
Exception: Tijam v. Sibonghanoy [G.R. No. L21450 (1968)] espoused the doctrine of
estoppel by laches, which held that a party
may be barred from questioning a court’s
jurisdiction after invoking the court’s authority
in order to secure affirmative relief against its
opponent, when laches would prevent the
issue of lack of jurisdiction from being raised for
the first time on appeal by a litigant whose
purpose is to annul everything done in a trial in
c. Jurisdiction over the Issues
Jurisdiction over the issues is the power of
the court to try and decide the issues raised in
the pleadings of the parties [Reyes vs Diaz,
G.R. No. 48754 (1941)]
An issue is a disputed point or question to
which parties to an action have narrowed down
their several allegations and upon which they
are desirous of obtaining a decision [1 Riano
83, 2016 Bantam Ed., citing Black’s Law
Dictionary 745, 5th Ed.]
Generally, jurisdiction over the issues is
conferred and determined by
a. The pleadings of the parties, which
present the issues to be tried and
determine whether or not the issues are of
fact or law [Reyes v. Diaz, G.R. No. L48754 (1941)]
b. Stipulation of the parties as when, in the
pre-trial, the parties enter into stipulations
Page 18 of 525
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of facts or enter into agreement simplifying
the issues of the case [Sec. 2(c), Rule 18]
c. Waiver or failure to object to evidence on
a matter not raised in the pleadings. Here
the parties try with their express or implied
consent on issues not raised by the
pleadings. [Sec. 5, Rule 10]
[1 Riano 83-84, 2016 Bantam Ed.]
The rule is that a party is entitled only to such
relief consistent with and limited to that sought
by the pleadings or incidental thereto. A trial
court would be acting beyond its
jurisdiction if it grants relief to a party
beyond the scope of the pleadings.
[Gonzaga v. CA, G.R. No. 142037 (2004)]
d. Jurisdiction over the Res or
Property in Litigation
REMEDIAL LAW
(2014); Perkins v. Dizon [G.R. No. 46631
(1939)]
Example: A land registration case is a
proceeding in rem. In such a case, actual
possession of the land by the court is not
necessary. It is enough that there is
constructive seizure of the land through
publication and service of notice. [1 Riano 89,
2016 Bantam Ed.]
Jurisprudence holds that if the action is in rem
or quasi in rem, jurisdiction over the person
of the defendant is not required. What is
required is jurisdiction over the res, although
summons must also be served upon the
defendant in order to satisfy the requirements
of due process. [Gomez vs CA, G.R. No.
127692 (2004)]
Jurisdiction over the res refers to the court’s
jurisdiction over the thing or the property which
is the subject of the action [1 Riano 104, 2014
Bantam Ed.]
5. Distinguish:
Jurisdiction
Judgment
“Res,” in civil law is a “thing” or “object.” It is
everything that may form an object of rights, as
opposed to a “persona,” which is the subject of
rights. It includes object, subject matter or
status [1 Riano 86, 2016 Bantam Ed., citing
Black’s Law Dictionary 1172, 5th Ed.]
Error of Jurisdiction is one which occurs
when the court exercises a jurisdiction not
conferred upon it by law or when the court acts
in excess of its jurisdiction or with grave abuse
of discretion amounting to lack of jurisdiction.
[GSIS v. Oliza, G.R. No. 126874 (1999)]
How Acquired:
a. By seizure of the thing under legal process
whereby, it is brought into actual custody of
the law (custodia legis); or
b. From the institution of legal proceedings
wherein, under special provisions of law,
the power of the court over the property is
recognized and made effective (potential
jurisdiction over the res) [Biaco v.
Philippine Countryside Rural Bank, G.R.
No. 161417 (2007); El Banco EspañolFilipino v. Palanca, G.R. No. 11390 (1918)]
Error of Judgment presupposes that the court
is vested with jurisdiction over the subject
matter but in the process of exercising such
jurisdiction, it committed mistakes in the
appreciation of facts and the evidence leading
to an erroneous judgment. [1 Riano 58, 2016
Bantam Ed]
In order that the court may exercise power over
the res, it is not necessary that the court
should take actual custody of the property,
potential custody thereof being sufficient.
[Marcos, Jr. v. Republic, G.R. No. 189434
Error of jurisdiction
One where the act
complained of was:
(1)
without
jurisdiction
or
in
excess of jurisdiction
[Cabrera v. Lapid,
G.R. No. 129098
(2006)], or
Page 19 of 525
Error
and Error
of
of
Error of judgment
One which the court
may commit in the
exercise
of
its
jurisdiction.
It includes errors of
procedure
or
mistakes in the
court’s
findings
U.P. LAW BOC
(2) with grave abuse
of
discretion
amounting to lack of
jurisdiction
CIVIL PROCEDURE
[Banco
Filipino
Savings
and
Mortgage Bank v.
CA, G.R No. 132703
(2000)]
Correctable only by
the extraordinary writ
of certiorari. [Cabrera
v. Lapid, G.R. No.
129098 (2006)]
Note: Sec. 8, Rule 40 Correctable
by
allows an RTC with appeal. [Cabrera v.
original jurisdiction Lapid, G.R. No.
over a case brought 129098 (2006)]
on appeal from a
lower court without
jurisdiction
over
subject matter to
decide the case on
the merits.
When there is an
error of jurisdiction on
the part of the court,
the
decision
rendered is a total
An
erroneous
nullity and may be
judgment on the part
struck down at any
of the court does not
time, even on appeal;
render the judgment
EXCEPT when party
void.
raising the issue is
barred by estoppel.
[Suntay v. Gocolay,
G.R. No. 144892
(2005)]
[1 Riano 73-74, 2014 Bantam Ed.]
6. Distinguish: Jurisdiction and
Venue
Venue
Place where the
case is to be heard
or tried
Procedural
Establishes
a
relation
between
Jurisdiction
plaintiff
and
defendant,
or
petitioner
and
respondent
May be changed by
the
written
agreement of the
parties or waived
expressly
or
impliedly
REMEDIAL LAW
court and the subject
matter
Fixed by law and
cannot be conferred
by
the
act
or
agreement of the
parties
The
court
may
dismiss an action
motu proprio in case
of lack of jurisdiction
over the subject
matter
[Rudolf
Lietz
Holdings, Inc. v.
Registry of Deeds of
Parañaque
City,
G.R. No. G.R. No.
133240 (2000)]
Jurisdiction over the
subject matter may
The objection to an be raised at any
improper
venue stage
of
the
must be raised in the proceedings since it
answer
as
an is conferred by law,
affirmative defense. although a party may
[Sec 12, Rule 8]
be
barred
from
It is no longer a valid raising it on the
ground for a motion ground of estoppel
to dismiss.
[La’o v. Republic,
G.R. No. 160719
(2006)]
[Nocum v. Tan, G.R. No. 145022 (2005)]
[1 Riano 196, 2014 Bantam Ed.]
The court may not
dismiss an action
motu proprio for
improper venue
[Rudolf
Lietz
Holdings, Inc. v.
Registry of Deeds of
Parañaque
City,
G.R. No. G.R. No.
133240 (2000)]
7. Jurisdiction
over
Small
Claims, Rules on Summary
Procedure, Brgy. Conciliation
Authority to hear and
determine a case
Substantive
Establishes
a
relation between the
Page 20 of 525
a. Cases Covered by Revised
Rules of Procedure for Small
Claims Cases
U.P. LAW BOC
CIVIL PROCEDURE
The Revised Rules shall govern the procedure
in actions for payment of money where the
value of the claim does not exceed PHP
400,000 in cases filed before the MeTC, and
P300,000 in cases filed before the MCTC,
MTCS, and MTCC, exclusive of interest and
costs. [ February 26, 2019 Resolution in A.M.
No. 08-8-7-SC] [OCA Circular No. 45-2019]
Applicability
All actions which are purely civil in nature,
where the claim or relief prayed for by the
plaintiff is solely for payment or reimbursement
of sum of money.
The claim or demand may be:
1. For money owed under a contract of lease,
loan, services, sale, or mortgage,
2. For liquidated damages arising from
contracts, or
3. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417 of the LGC.
[Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016]
b. Cases Covered by Rules on
Summary Procedure
1. All cases of forcible entry and unlawful
detainer (FEUD), irrespective of the
amount of damages or unpaid rentals
sought to be recovered,
2. All other cases, except probate
proceedings, where the total amount of the
plaintiff‘s claim does not exceed
P100,000 outside Metro Manila or
P200,000 in Metro Manila, exclusive of
interest and costs
[Sec. 1, Revised Rule on Summary Procedure,
as amended by A.M. No. 02-11-09-SC]
c. Cases Covered by Barangay
Conciliation
The Lupon of each barangay shall have the
authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes.
REMEDIAL LAW
Except:
1. Where one party is the government or any
subdivision or instrumentality thereof
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
P5,000
4. Offenses where there is no private
offended party
5. Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
except
where
such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice
[Sec. 408, Local Government Code]
8. Any complaint by or against corporations,
partnerships, or juridical entities, since only
individuals shall be parties to barangay
conciliation
proceedings
either
as
complainants or respondents, [Sec. 1, Rule
VI, Katarungang Pambarangay Rules; also
see SC Administrative Circular No. 14-93]
9. Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
a. A criminal case where the accused is
under police custody or detention,
b. A petition for habeas corpus by a
person illegally detained or deprived of
his liberty or one acting in his behalf,
c. Actions coupled with provisional
remedies,
such
as
preliminary
injunction, attachment, replevin and
support pendente lite, or
d. Where the action may be barred by the
Statute of Limitations,
Page 21 of 525
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10. Labor disputes or controversies arising
from employer-employee relationship,
11. Where the dispute arises from the CARL,
or
12. Actions to annul judgment upon a
compromise which may be directly filed in
court.
[Supreme Court Administrative Circular No. 1493]
Note: Barangay conciliation is a condition
precedent for filing a case. However, failure to
comply with a condition precedent is no longer
a ground for a motion to dismiss under the
Amended Rules. It is now included in the
enumerated Affirmative Defenses that may be
set out in the answer under Sec. 12(a), Rule 8.
Being a waivable defense, the failure to raise
non-compliance with condition precedent in the
answer constitutes a bar from raising such
defense later in the proceedings.
C.
REMEDIAL LAW
CIVIL PROCEDURE
CIVIL PROCEDURE
1. General Provisions
character and whenever practicable and
convenient. [Sec. 4, Rule 1]
b. Commencement of Civil Action
The filing of the original complaint in court
signifies the commencement of the civil action.
[Sec. 5, Rule 1]
c. Construction
The Rules shall be liberally construed in order
to promote a just, speedy, and inexpensive
disposition of every action and proceeding.
[Sec. 6, Rule 1]
A strict and rigid application of the rules of
procedure, especially on technical matters,
which tend to frustrate rather than promote
substantial justice, must be avoided. [TiorosioEspinosa v. Hofileña-Europa, G.R. No.
185746 (2016)]
However, compliance with the procedural
rules is still the general rule, and
abandonment thereof should only be done in
the most exceptional circumstances. [Pilapil v.
Heirs of Briones, 514 SCRA 197 (2007)]
a. Applicability
The Rules of Court shall apply in all the courts,
except as otherwise provided by the Supreme
Court. [Sec. 2, Rule 1]
Actions or Proceedings Governed by the
Rules of Court
1. Civil actions
2. Criminal actions
3. Special Proceedings
[Sec. 3, Rule 1]
Actions or Proceedings Not Governed by
the Rules of Court
1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings
However, the Rules may still apply to the
cases above by analogy or in suppletory
2. Actions
An action is a formal demand of one's right
in a court of justice in the manner
prescribed by the court or by the law. It is
the method of applying legal remedies
according to definite established rules.
[Natcher vs Court of Appeals, G.R. No. 133000
(2001)]
The determinative operative act, which
converts a claim into an action, is its filing with
a court of justice. [1 Riano 212, 2014 Bantam
Ed.]
a. Meaning
Actions
of
Ordinary
Civil
An ordinary civil action is one which is
governed by the rules for ordinary civil actions.
[Sec. 3(a), par. 2, Rule 1]
Page 22 of 525
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Rules for Ordinary Civil Actions refer to Rule 2
(Cause of Action) until Rule 61 (Provisional
Remedies).
● General Rules on Ordinary Civil Action Rule 2 to Rule 5
● Procedure in Trial Courts - Rule 6 to Rule
39
● Appeals - Rule 40 to Rule 43
● Procedure in the Court of Appeals - Rule
44 to Rule 55
● Procedure in the SC - Rule 56
● Provisional Remedies - Rule 57 to Rule
61
b. 2. Meaning of Criminal Actions
One by which the State prosecutes a person
for an act or omission punishable by law [Sec.
3(b), Rule 1]
Proceedings are to be regarded as criminal
when the purpose is primarily punishment, and
civil when the purpose is primarily
compensatory or remedial. [People vs Godoy,
243 SCRA 64 (1995)]
c. Meaning
Actions
REMEDIAL LAW
CIVIL PROCEDURE
of
Special
Civil
A special civil action is one which is subject
to the specific rules prescribed for a special civil
action but also governed by the rules for
ordinary civil actions. [Sec. 3(a), par. 2, Rule 1]
Rules 62 to 71 provide for special civil actions.
However, despite having particular rules which
govern the special civil actions, the rules for
ordinary civil action still apply.
d. Distinguish: Civil Actions and
Special Proceedings
Civil Action
A civil action is ne by
which a party sues
another
for
the
enforcement
or
protection of a right,
Special
Proceeding
A
special
proceeding is a
remedy by which a
party
seeks
to
establish a status, a
or the prevention or
redress of a wrong
[Sec. 3(a), par. 1,
Rule 1]
right, or a particular
fact [Sec. 3(c), Rule
1]
The rules of ordinary civil actions have
suppletory application in special proceedings.
[1 Riano 192, 2016 Bantam Ed.] (also see Sec.
2, Rule 72)
e. Personal
Actions
Actions
Real Action
It is an action
affecting title to or
possession of real
property, or interest
therein. [See Sec. 1,
Rule 4]
and
Real
Personal Action
It refers to all other
actions which are
not real actions.
[Sec. 2, Rule 4]
Why distinction is important
In order to determine the proper venue of the
action. [Sec.1, Rule 4 in relation to Sec. 2, Rule
4]
For purposes of determining venue, the
question of whether or not the venue has been
properly laid depends to a great extent on the
kind of action (real or personal) presented by
the complaint. [PICOP v. Samson, G.R. No. L30175 (1975)]
Not every action involving real property is a
real action because the realty may only be
incidental to the subject matter of the suit. In
the cases of Heirs of Bautista v. Lindo [G.R.
No. 208232 (2014)] involving a complaint to
redeem a parcel of land subject of a free patent
and Olivarez Realty vs Castillo [G.R. No.
196251 (2014) involving an action for
rescission of a contract involving real property],
the SC held that the conveyance of real
property was only incidental to the
determination of matters incapable of
pecuniary estimation. The cases were deemed
personal actions because the principal action
or remedy sought does not involve title to or
possession of real property.
Page 23 of 525
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f. Local and Transitory Actions
Local Action
A local action is one
which has to be filed
in the place where
the
property
is
located. [Sec.1, Rule
4]
One that could be
instituted in one
specific
place.
[Manila Railroad v.
Attorney-General,
G.R. No. L-6287
(1911)]
Transitory Action
A transitory action is
one which may be
filed in the residence
of the plaintiff or
defendant, at the
option of the plaintiff.
[Sec. 2, Rule 4]
One that could be
prosecuted in any
one
of
several
places.
[ManilaRailroad v.
Attorney-General,
G.R. No. L-6287
(1911)]
g. Actions in rem, in personam,
and quasi in rem
Why distinction is important
● To determine the binding effect of a
decision the court may render over a
party, whether impleaded or not
[Paderanga v. Buissan, G.R. No. 49475
(1993)]
● To determine whether or not jurisdiction
over the person of the defendant is
required, and the type of summons to be
employed [1 Riano 206, 2016 Bantam Ed.]
Page 24 of 525
REMEDIAL LAW
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REMEDIAL LAW
Actions in rem, in personam, and quasi in rem
One which seeks to
enforce personal rights
and obligations brought
against
the
person.
[Paderanga v. Buissan,
GR. No. 49475 (1993)]
Action quasi in rem
Names a person as
defendant, but its object is
to subject that person's
interest in a property to a
corresponding
lien
or
obligation [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Necessary for the court to
validly try and decide the
case which can be made
through
service
of
summons [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Not a prerequisite to
confer jurisdiction on the
court, provided that the
latter has jurisdiction over
the res [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Jurisdiction is acquired
through
service
of
summons as provided in
the Rule 14 or voluntary
appearance
Jurisdiction over the res is
acquired either (a) by the
seizure of the property
under
legal
process,
whereby it is brought into
actual custody of the law,
or (b) as a result of the
institution
of
legal
proceedings, in which the
power of the court is
recognized and made
effective [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Binding
effect
of
decisions
The decision is binding
as against the whole
world [Paderanga v.
Buissan,
G.R.
No.
49475 (1993)]
Any judgment therein is
binding only upon the
parties
properly
impleaded [Paderanga v.
Buissan, GR. No. 49475
(1993)]
Judgments therein are
binding only upon the
parties who joined in the
action [Macasaet v. Co,
G.R. No. 156759 (2013)]
Examples
Petition for adoption,
annulment of marriage,
or correction of entries
in the birth certificate
[Lucas v. Lucas, G.R.
No. 190710 (2011)]
Action for a sum of money;
action for damages [1
Riano 221, 2014 Bantam
Ed.]
Attachment, foreclosure of
mortgage,
action
for
partition and action for
accounting [1 Riano 227,
2014 Bantam Ed.]
Definition
Jurisdiction
over
the
person
How
jurisdiction
is acquired
Action in rem
Action against the thing
or res itself, instead of
against the person
[Hernandez v. Rural
Bank of Lucena, Inc.
G.R.
No.
L-29791,
(1978)]
Not a prerequisite to
confer jurisdiction on
the court, provided that
the latter has jurisdiction
over the res [Lucas v.
Lucas, G.R. No. 190710
(2011)]
Jurisdiction over the res
is acquired either (a) by
the seizure of the
property under legal
process, whereby it is
brought into actual
custody of the law, or
(b) as a result of the
institution
of
legal
proceedings, in which
the power of the court is
recognized and made
effective
[Lucas
v.
Lucas, G.R. No. 190710
(2011)]
Action in personam
Page 25 of 525
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who has committed a
delict
or
wrong
against him.
3. Cause of Action
a. Meaning of Cause of Action
A cause of action is an act or omission by
which a party violates a right of another [Sec.
2, Rule 2]
Without a cause of action, one cannot seek
judicial relief for a violation of one’s rights
because every ordinary civil action must be
based on a cause of action [Sec. 1, Rule 2]
Bases of cause of action
A cause of action stems from the sources of
obligations under Art. 1156 of the CC
a. Law,
b. Contract,
c. Quasi-contract,
d. Acts and omissions punishable by law, or
e. Quasi-delict
[Sagrada Orden etc v. NACOCO, G.R. No. L3756 (1952)]
Elements of a cause of action
a. Plaintiff’s legal right;
b. Defendant’s correlative obligation to
respect plaintiff’s right; and
c. Defendant’s act/omission in violation of
plaintiff’s right
[Ma-ao Sugar Central v. Barrios, G.R. No. L1539 (1947)]
When cause of action must exist
A cause of action must exist at the time of the
filing of the complaint – else, the case shall
be dismissible for being a groundless suit.
[Swagman Hotels and Travel v. CA, G.R. No.
161135 (2005), reiterating Surigao Mine
Exploration v. Harris, G.R. No. L-45543 (1939)]
b. Distinguish: Right of Action and
Cause of Action
Right of Action
The remedial right or
right to relief granted
by law to a party to
institute an action
against a person
Cause of Action
The
delict
or
wrongful
act
or
omission committed
by the defendant in
violation
of
the
REMEDIAL LAW
primary rights of the
plaintiff. [Racoma v.
Fortich, G.R. No. L29380 (1971)]
Right to sue as a
consequence of the The delict or wrong.
delict.
The cause of action
of the plaintiff is
A right of action is determined by the
determined
by averments in the
substantive law.
pleading regarding
the acts committed
by the defendant.
[1 Regalado 21, 2010 Ed.]
There can be no right of action without a
cause of action being first established.
[Español v. The Chairman and Members of the
Board of Administrators, Philippine Veterans
Administration, G.R. No. L-44616 (1985)]
c. Distinguish: Failure of the
Complaint to State a Cause of
Action and Lack of Cause of
Action
The cause of action must unmistakably be
alleged in the complaint, such that all the
elements required by substantive law must
clearly appear from a mere reading of the
complaint. [1 Riano 240, 2014 Bantam Ed.]
Failure to state a cause of action is no longer a
ground for a motion to dismiss under the
Amended Rules. It is, however, one of the
enumerated Affirmative Defenses that must be
set out in the Answer or else it is deemed
waived. [Sec 12, Rule 8]
The complaint must contain a concise
statement of the ultimate or essential facts
constituting the plaintiff’s cause of action. The
focus is on sufficiency, not veracity, of the
material allegations. [Anchor Savings Bank v.
Furigay, G.R. No. 191178 (2013)]
Page 26 of 525
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Failure to State
Lack of Cause of
Cause of Action
Action
Refers
to
the Refers to a situation
insufficiency of the where the evidence
allegations in the failed to prove the
pleading.
cause of action.
The proper remedy
when there is a
The proper remedy
failure to state a
when the complaint
cause of action is to
is not based on a
allege the same as
cause of action is to
an
affirmative
file a Demurrer of
defense
in
the
Evidence. [Rule 33]
Answer. [Sec. 12(4),
Rule 8]
[Macaslang v. Zamora, G.R. No. 156375
(2011)]
d. Test of Sufficiency of Cause of
Action
The test of sufficiency of a cause of action
rests on whether, hypothetically admitting
the facts alleged in the complaint to be true,
the court can render a valid judgment upon
the same, in accordance with the prayer in the
complaint. [Heirs of Maramag v. Maramag,
G.R. No. 181132 (2009)]
However, there is no hypothetical admission
of the veracity of the allegations if
a. The falsity of the allegations is subject to
judicial notice;
b. The allegations are legally impossible;
c. The allegations refer to facts which are
inadmissible in evidence;
d. By the record or document in the pleading,
the allegations appear unfounded; or
e. There is evidence which has been
presented to the court by stipulation of the
parties or in the course of hearings related
to the case
[Heirs of Maramag v. Maramag, G.R. No.
181132 (2009)]
REMEDIAL LAW
How to determine existence of cause of
action
General rule:
Determination shall be based only on facts
alleged in the complaint and from no other,
and the court cannot consider other matters
aliunde [Manaloto v. Veloso III, G.R. No.
171635 (2010)]
Exception:
Instances when the SC considered matters
aside from the facts alleged in the complaint,
such as:
a. Documents attached to the complaint
[Agrarian Reform Beneficiaries Association
v. Nicolas, G.R. No. 168394 (2008)] – this
case refers to actionable documents which
by express provision of the ROC are
deemed part of the pleading.
b. Appended annexes, other pleadings, and
admissions on record [Zepeda v. China
Banking Corp., G.R. No. 172175 (2006)] –
the
jurisprudence
establishing
this
supposed exception ultimately points to
dismissals based on a lack of a cause of
action, opposed to a failure of the
complaint to state a cause of action.
e. Splitting a Single Cause of
Action and its Effects
The act of instituting two or more suits on
the basis of the same cause of action [Sec.
4, Rule 2], or splitting a single cause of action,
is prohibited by the Rules. Such is referred to
as “splitting a single cause of action”. A
party may not institute more than one suit for a
single cause of action. [Sec. 3, Rule 2]
Such violates the policy against multiplicity of
suits, whose primary objective is to avoid
unduly burdening the dockets of the court
[Dynamic Builders & Construction Co Inc v.
Presbitero, Jr. G.R. No. 174202 (2015)]
Page 27 of 525
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Tests to determine a “single” cause of
action
The tests to ascertain whether two suits relate
to a single or common cause of action are:
a. Whether the same evidence would support
and sustain both causes of action (Same
Evidence Test);
b. Whether the defenses in one case may be
used to substantiate the complaint in the
other; and
c. Whether the cause of action in the second
case existed at the time of filing of the first
complaint.
[Umale v. Canoga Park Development
Corp., G.R. No. 167246 (2011)]
Plaintiff's remedy if other reliefs not
included in the complaint: Amendment
In the event that a plaintiff has omitted to
include in the complaint one or several other
reliefs to which he may be entitled, the proper
remedy of the plaintiff is not to institute
another or several other actions – instead he
should move to amend the complaint to include
the omitted relief or reliefs [Bayang v. CA, G.R.
No. L-53564 (1987)]
Dismissal as effect of splitting of 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 [Sec. 4, Rule 2]
The defendant facing a complaint which is
infirm due to the plaintiff splitting causes of
action may either allege the infirmity as an
Affirmative Defense in his Answer [Sec. 5(b),
Rule 6], or file a Motion to Dismiss on the
following grounds:
a. There is another action pending between
the same parties for the same cause [Sec.
12 (a)(2), Rule 15], or
b. The cause of action is barred by a prior
judgment. [Sec. 12 (a)(3), Rule 15]
f. Joinder and Misjoinder
Causes of Action
of
Joinder of causes of action
It is the assertion of as many causes of action
as a party may have against another in one
REMEDIAL LAW
pleading alone. [Sec. 5, Rule 2] It is the process
of uniting two or more demands or rights of
action in one action. [1 Riano 187, 2016
Bantam Ed.]
Rationale
To avoid a multiplicity of suits and to expedite
disposition of litigation at minimum cost. [Ada
v. Baylon, G.R. No. 182435 (2012)]
Rule merely permissive
The rule however is purely permissive as there
is no positive provision of law or any rule of
jurisprudence which compels a party to join all
his causes of action and bring them at one and
the same time. [Nabus v. CA, G.R. No. 91670
(1991)]
Requisites
a. The plaintiff asserts numerous causes of
action in one pleading
b. The causes of action are against the
opposing party
c. The party joining the causes of action
complies with the rules on joinder of parties
under Sec 6, Rule 3, and
d. The joinder shall not include special civil
actions or actions governed by special
rules.
Where causes of action are between the same
parties but pertain to different venues or
jurisdictions, the joinder may be allowed in
the RTC provided one of the causes of action
are within that court’s jurisdiction and venue
lies therein.
[Sec. 5, Rule 2]
Totality Rule applies in Joinder of Actions
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
Misjoinder of causes of action
There is misjoinder of causes of action when
conditions for joinder under Section 5, Rule
2 are not met. [Perez v. Hermano, G.R. No.
147417 (2005)]
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An erroneously joined cause of action may, on
motion of a party or on the initiative of the court,
be severed and proceeded with separately.
Misjoinder is not a ground for dismissal of an
action [Sec. 6, Rule 2]
Subject to waiver
If there is no objection to the improper joinder
or the court did not motu proprio direct a
severance, then there exists no bar in the
simultaneous
adjudication
of
all
the
erroneously joined causes of action, as long as
the court trying the case has jurisdiction
over all of the causes of action therein
notwithstanding the misjoinder [Ada v. Baylon,
G.R. No. 182435 (2012)]
If the court has no jurisdiction to try the
misjoined action, then it must be severed.
Otherwise, adjudication rendered by the court
with respect to it would be a nullity. [Ada v.
Baylon, G.R. No. 182435 (2012)]
4. Parties to Civil Actions
Plaintiff
May refer to the claiming party, counterclaimant, cross-claimant, or third-party plaintiff.
[Sec. 1, Rule 3]
Defendant
May refer to the original defending party, the
defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party
defendant. [Sec. 1, Rule 3]
Also includes an unwilling co-plaintiff - any
party who should be joined as plaintiff but
whose consent cannot be obtained. He may be
made a defendant and the reason therefore
shall be stated in the complaint. [Sec. 10, Rule
3]
Who may be parties
1. Natural persons [Sec. 1, Rule 3]
2. Juridical persons [Sec. 1, Rule 3]
a. The State and its political subdivisions
b. Other corporations, institutions and
entities for public interest or public
purpose, created by law, and
REMEDIAL LAW
c. Corporations,
partnerships,
and
associations for private interest or
purpose to which the law grants a
judicial personality, separate and
distinct from that of each shareholder,
partner, or member
d. [Art. 44, Civil Code]
3. Entities authorized by law [Sec. 1, Rule
3]
a. A corporation by estoppel is precluded
from denying its existence, and the
members are liable as general partners
[Sec. 21, Corporation Code]
b. A partnership with capital of at least
P3,000 which fails to comply with the
registration requirements is liable as a
partnership to third persons [Arts.
1768, 1772, Civil Code]
c. The estate of a deceased person is a
juridical entity that has a personality of
its own [Nazareno v. C.A., G.R. No.
138842 (2000), citing Limjoco v.
Intestate Estate of Fragrante, G.R. No.
L-770 (1948)]
d. A legitimate labor union may sue and
be sued in its registered name [Art.
251(e), Labor Code]
e. The Roman Catholic Church may be a
party; as to its properties, the
Archbishop of diocese to which they
belong may be a party [Barlin v.
Ramirez, G.R. No. 2832 (1906);
Versoza v. Fernandez, G.R. No. 32276
(1930)]
f. A dissolved corporation may prosecute
and defend suits by or against it
provided that the suits (i) occur within
three (3) years after its dissolution, and
(ii) the suits are in connection with the
settlement and closure of its affairs
[Sec. 139, Revised Corporation Code]
4. [1 Riano 214, 2016 Bantam Ed.]
a. Two or more persons not organized as
an entity with juridical personality but
enter into a transaction
b. [Sec. 15, Rule 3]
Legal capacity to sue
Facts showing the capacity of a party to sue or
be sued, or the authority of a party to sue or be
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sued in a representative capacity, or the legal
existence of an organized association of
persons that is made a party, must be
averred. [Sec. 4, Rule 8]
a. Real
Parties
in
Interest;
Indispensable
Parties;
Representatives as Parties;
Necessary Parties; Indigent
Parties; Alternative Defendants
i. Real Parties in Interest
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 [Sec. 2, Rule 3]
Nature of interest
The interest must be real, which is a present
and substantial interest, as distinguished from
a mere expectancy or a future, contingent,
subordinate, or consequential interest. [Rayo v.
Metrobank, G.R. No. 165142 (2007)]
It should be material and direct, as
distinguished from a mere incidental interest
[Mayor Rhustom Dagadag v. Tongnawa, G.R.
No. 161166-67 (2005)]
Why necessary to determine the real party
in interest
General rule: Every action must be prosecuted
or defended in the name of the real party in
interest.
Exception: Unless otherwise provided by law
or the Rules. [Sec. 2, Rule 3]
If the suit is not brought in the name of or
against the real party-in-interest, the defendant
must set out in his answer as an Affirmative
Defense the ground that the complaint “states
no cause of action.” [Sec 12, Rule 8]
Spouses as parties
General rule: Husband and wife shall sue and
be sued jointly.
Exception: As provided by law.
[Sec. 4, Rule 3]
REMEDIAL LAW
Remedies for the Plaintiff
1. Amendment of pleadings [Alonso v.
Villamor, G.R. No. L-2352 (1910)]; or
2. Complaint may be deemed amended to
include the real party-in-interest [Balquidra
v. CFI Capiz, G.R. No. L-40490 (1977)]
When real party-in-interest bound despite
not being formally impleaded
As an exception, the real litigant may be held
bound as a party even if not formally
impleaded, provided he had his day in court.
[Albert v. University Publishing Co., G.R. No. L9300 (1958)]
ii. Indispensable Parties
A real party-in-interest without whom no final
determination can be had of an action [Sec. 7,
Rule 3]
An indispensable party is one whose interest
in the subject matter of the suit and the relief
sought are so inextricably intertwined with the
other parties that his legal presence as a party
to the proceeding is an absolute necessity.
[Benedicto-Munoz v. Cacho-Olivares, G.R. No.
179121 (2015)]
A party is not indispensable if his interest in
the controversy or subject matter is distinct and
divisible from the interest of the other parties
and will not necessarily be prejudiced by a
judgment which does not complete justice to
the parties in court. [Benedicto-Munoz v.
Cacho-Olivares, G.R. No. 179121 (2015)]
iii. Representatives as Parties
A representative may be a trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law or
the ROC. [Sec. 3, Rule 3]
Beneficiary to be included in the title of the
case
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
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shall be deemed to be the real party in interest.
[Sec. 3, Rule 3]
Minor or incompetent person as party
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. [Sec. 5, Rule 3]
iv. Necessary Parties
A necessary party is not one who is
indispensable but, rather, one 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. [Sec. 8, Rule 3]
Indispensable
Parties
Must
be
joined
under any and all
conditions [Borlasa
v. Polistico, G.R. No.
22909 (1925)]
Presence
is
mandatory, he must
be joined because
the court cannot
proceed without him
[1 Riano 281, 2014
Bantam Ed.]
No
final
determination can be
had of a case without
his presence.
REMEDIAL LAW
CIVIL PROCEDURE
v. Indigent Parties
Indigent Parties
[ Rule 21]
One who has no
money or property
sufficient
and
available for food,
shelter, and basic
necessities [Sec. 21,
Rule 3]
Necessary Parties
May
be
joined
whenever possible
[Borlasa v. Polistico,
G.R. No. 22909
(1925)]
Presence is not
mandatory because
his
interest
is
separable from that
of the indispensable
party. [1 Riano 281,
2014 Bantam Ed.]
Final decree can be
had in a case even
without a necessary
party.
[Chua
v.
Torres, G.R. No.
151900
(2005);
Seno v. Mangubat,
G.R. No. L-44339
(1987)]
1. Exemption from
payment
of
docket and other
lawful fees, and
of transcripts of
stenographic
notes which the
court may order
to be furnished
him
2. Amount of the
docket and other
Page 31 of 525
Indigent Litigants
[Sec 19, Rule 141]
One whose gross
income and that of
their
immediate
family do not exceed
an amount double
the
monthly
minimum wage of an
employee, and who
does not own real
property with a fair
market value of more
than PHP300,000
To be entitled to the
exemption
herein
provided, the litigant
shall execute an
affidavit that he and
his immediate family
do not earn a gross
income
above
mentioned, nor they
own
any
real
property with the
assessed
value
aforementioned,
supported by an
affidavit
of
a
disinterested
person attesting to
the truth of the
litigant’s affidavit
1. Exempt from the
payment of legal
fees.
2. The legal fees
shall be a lien on
any
judgment
rendered in the case
favorably to the
indigent
litigant,
unless the court
otherwise provides
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lawful fees shall
be a lien on any
judgment
rendered in the
case favorable to
the
indigent,
unless the court
otherwise
provides
Consequence
if
party not actually
indigent:
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
or
the
payment
thereof,
without
prejudice to such
other sanctions as
the
court
may
impose
CIVIL PROCEDURE
REMEDIAL LAW
inconsistent with a right to relief against the
other [Sec. 13, Rule 3]
b. Compulsory and
Joinder of Parties
Permissive
General Rule:
The joinder of parties is permissive
Any falsity in the
affidavit of a litigant
or a disinterested
party
shall
be
sufficient cause to
dismiss
the
complaint or action
or to strike out the
pleading of that
party,
without
prejudice
to
whatever
criminal
liability may have
been incurred
Summary of rules for indigent litigants
If the applicant for exemption meets the salary
and property requirements under Sec. 19 of
Rule 141, then the grant of the application is
mandatory.
On the other hand, when the application does
not satisfy one or both requirements, then the
application should not be denied outright;
instead, the court should apply the "indigency
test" under Sec. 21, Rule 3 and use its sound
discretion in determining the merits of the
prayer for exemption. [Sps. Algura v. City of
Naga, G.R. No. 150135 (2006)]
vi. Alternative Defendants
Where the plaintiff is uncertain against whom
of several persons he is entitled to relief, he
may join any or all of them in the alternative,
although a right to relief against one may be
Exception:
It is compulsory when the one involved is an
indispensable party.
[Crisologo
v.
JEWN
Agro-Industrial
Corporation, G.R. No. 196894 (2014)]
i. Compulsory Joinder
Parties in interest without whom no final
determination can be had of an action (i.e.
indispensable parties) shall be joined either as
plaintiffs or defendants. [Sec. 7, Rule 3]
Effect of non-joinder of indispensable
parties
The absence of an indispensable party 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. [Moldes v. Villanueva, G.R. No.
161955 (2012)]
Failure to implead an indispensable party is not
a ground for dismissal of an action, as the
remedy in such a case is to implead the
party claimed to be indispensable,
considering that the parties may be added by
order of the court, on motion of the party or on
its own initiative at any stage of the action.
[Galido v. Magrare, G.R. No. 206584 (2016)]
Effect of misjoinder or non-joinder of
parties; when ordered by the court
It is when the order of the court to implead
an indispensable party goes unheeded that
the case may be dismissed. The court has
authority to dismiss a complaint due to the fault
of the plaintiff when he does not comply with
any order of the court [Plasabas v. CA, G.R.
No. 166519 (2009)]
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Effect of non-joinder of necessary parties
Non-joinder of a necessary party does not
prevent the court from proceeding in the action.
The judgment rendered therein shall not
prejudice the rights of such necessary party
[Sec. 9, par. 3, Rule 3]
Remedy in case of non-joinder of necessary
parties
When a pleading asserting a claim omits to join
a necessary party, the pleader must:
1. Set forth the name of the necessary party,
if known, and
2. State the reason why he is omitted
[Sec. 9, par. 1, Rule 3]
Should the court find the reason for the nonjoinder of a necessary party unmeritorious, it
may order the inclusion of such necessary
party, if jurisdiction over his person may be
obtained. Failure to comply with such order
without justifiable cause shall be deemed a
waiver of the claim against such party [Sec.
9, pars. 1-2, Rule 3]
ii. Permissive Joinder
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 [Sec. 6, Rule 3]
Requisites
1. The right to relief arises out of the same
transaction or series of transactions;
2. There is a question of law or fact common
to all the plaintiffs or defendants; and
3. Such joinder is not otherwise proscribed by
the provisions of the ROC on jurisdiction
and venue
[1 Regalado 91, 2010 Ed.]
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. One of the conditions for such joinder
of causes of action is that the party joining the
causes of action shall comply with the rules
on joinder of parties. [Sec. 5, Rule 2]
iii. Misjoinder and Non-Joinder of
Parties
Misjoinder
When one is made a party to the action
although he should not be impleaded. [1 Riano
285, 2014 Bantam Ed.]
Non-joinder
When one is supposed to be joined but is not
impleaded in the action. [1 Riano 285, 2014
Bantam Ed.]
Effect of misjoinder or non-joinder of
parties
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action [Sec. 11,
Rule 3]
Objections to defects in parties
Objections should be made at the earliest
opportunity. Thus, objections to misjoinder
cannot be raised for the first time on appeal.
[Lapanday Agricultural & Development
Corporation v. Estita, G.R. No. 162109 (2005)]
iv. Class Suit
Requisites
a. Subject matter of the controversy is one of
common or general interest to many
persons;
b. The persons are so numerous that it is
impracticable to join them all as parties;
c. The court finds a number of them
sufficiently numerous and representative of
the class as to fully protect the interests of
all concerned; and
d. The representative sues or defends for the
benefit of all.
[Sec. 12, Rule 3]
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Only general interest in the subject matter
of litigation required
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 [Mathay v. Consolidated Bank & Trust
Company, G.R. No. L-23136 (1974)]
damages on behalf of individual planters for an
allegedly libelous article in an international
magazine. There is no common or general
interest in the reputation of a specific individual.
Each of the sugar planters has a separate and
distinct reputation in the community not shared
by the others [Newsweek, Inc. v. Intermediate
Appellate Court, G.R. No. 63559 (1986)]
Right to intervene
In a class suit, any party in interest shall have
the right to intervene to protect his individual
interest [Sec. 12, Rule 3]
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 [1
Riano 244, 2016 Bantam Ed.]
No dismissal upon the instance of plaintiff
or due to compromise
A class suit shall not be dismissed or
compromised without the approval of the court
[Sec. 2, Rule 17]
Examples of Class Suits
1. Taxpayer’s suit
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi [1 Regalado 99, 2010 Ed.]
2. Derivative suit
A derivative suit is an action brought by a
stockholder on behalf of the corporation to
enforce corporate rights against the
corporation’s directors, officers or other
insiders. Under the Revised Corporation Code,
the directors or officers, as provided under the
by-laws, have the right to decide whether or not
a corporation should sue. Since these directors
or officers will never be willing to sue
themselves, or impugn their wrongful or
fraudulent decisions, stockholders are
permitted by law to bring an action in the
name of the corporation to hold these
directors and officers accountable. In derivative
suits, the real party in interest is the
corporation, while the stockholder is a mere
nominal party [Ang v. Ang, G.R. No. 201675
(2013)]
v. Suits Against Entities Without
Juridical Personality
Requisites
a. There are 2 or more persons not organized
as a juridical entity; and
b. They enter into a transaction. [Sec. 15,
Rule 3]
Persons associated in an entity without juridical
personality may be sued under the name by
which they are generally or commonly
known. [Sec. 15, Rule 3]
Note: The authority to be a party under Sec. 15,
Rule 3 is confined only to being a defendant
and not as a plaintiff. This is evident from the
words, “they may be used” [1 Riano 265, 2014
Bantam Ed.]
When persons associated in an entity without
juridical personality are sued, the service of
summons may be effected upon all the
defendants by serving upon any of them, or
upon the person in charge of the office or place
of business maintained under such name.
[Sec. 7, Rule 14]
Not a Class Suit
There is no class suit in an action filed by
associations of sugar planters to recover
Page 34 of 525
vi. Effect of Death of Party Litigant
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Duty of counsel upon death of client
a. Inform court of such fact within 30 days
after the death; and
b. Give the name and address of the legal
representative. [Sec. 16, Rule 3]
Effect of failure to comply
Failure to comply is a ground for disciplinary
action [Sec. 16, Rule 3]
Action of court upon notice of death
Upon receipt of notice, the court shall
determine if the claim is extinguished by such
death.
a. Claim does not survive: substitution
would not be ordered
b. Claim survives: the court shall order the
legal representative of the deceased to
appear and be substituted for him within 30
days [Sec. 16, Rule 3]
[1 Riano 286, 2014 Bantam Ed., suggesting
Aguas v. Llemos, G.R. No. L-18107 (1962)]
Survival of Action
Survival depends on the nature of the action
and the damage sought.
Actions that survive
Actions that do not
survive
The wrong complained
of affects primarily and
principally property and
property rights
The injury complained
of is personal to the
person
Injuries to the person
are merely incidental
[Cruz v. Cruz, G.R. No.
173292 (2010)]
Property and property
rights affected are
incidental
[Cruz v. Cruz, G.R. No.
173292 (2010)]
E.g. Actions to recover
real
and
personal
property
from
the
estate;
actions
to
enforce a lien thereon;
and actions to recover
damages for an injury
to person or property
[Sec. 1, Rule 88; Aguas
v. Llemos, G.R. No. L18107 (1962)]
E.g. Action for support,
annulment of marriage,
legal separation
[1 Riano 291, 2014
Bantam Ed.]
REMEDIAL LAW
Court may order the opposing party, within a
specific time, to procure the appointment of an
administrator or executor of the estate in the ff.
cases
a. No legal representative is named; or
b. The one so named fails to appear within the
specified period. [Sec. 16, Rule 3]
Substitution
Summons not necessary
The substitute defendant need not be
summoned. The order of substitution shall
be served upon the parties substituted for the
court to acquire jurisdiction over the substitute
party [Ferreria v. Vda de Gonzales, G.R. No. L11567 (1986)]
Effect of failure to order substitution
Results in failure to acquire jurisdiction over
the representative or heirs of the deceased
party. Consequently, any judgment rendered
against such deceased party shall be null and
void for lack of jurisdiction over the persons of
the legal representative or of the heirs upon
whom the trial and the judgment would be
binding [The Heirs of Vda. De Haberer v. Court
of Appeals, et al., G.R. Nos. L-42699 to L-2709
(1981)]
Rule in case of death or separation of party
who is a public officer
The action may be continued or maintained by
or against his successor [Sec. 17, Rule 3]
Requisites:
a. A public officer is a party to an action in his
official capacity;
b. During the pendency of the action, he dies,
resigns, or otherwise ceases to hold office;
c. Within 30 days after the successor takes
office or such time as may be granted by
the court, any party shows to the
satisfaction of the court, that
• there is a substantial need for
continuing or maintaining such action;
and
• the successor adopts or continues his
predecessor’s action, or threatens to
do so
d. Before a substitution is made, the party or
officer to be affected shall be given
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reasonable notice of the application
therefor and accorded an opportunity to be
heard UNLESS he expressly assents
thereto
[Sec. 17, Rule 3]
Action on contractual money claims
Shall not be dismissed but shall instead be
allowed to continue until entry of final judgment
[Sec. 20, Rule 3]
Requisites
a. Action is for recovery of money,
b. The claim arose from express or implied
contract, and
c. Defendant dies before the entry of final
judgment in the court in which the action
was pending. [Sec. 20, Rule 3]
Effect
If the plaintiff obtains a favorable judgment,
said judgment shall be enforced following the
procedure provided for in the ROC for
prosecuting claims against the estate of a
deceased person [Sec. 20, Rule 3] He/She is
not supposed to file a motion for the issuance
of an order and writ of execution of the
judgment [1 Riano 201, 2014 Bantam Ed.]
5. Venue
Venue refers to the place where a civil action
may be tried; in civil cases, it essentially
concerns a rule of procedure which looks
primarily at the convenience of the litigants.
[Gumabon, et al. v. Larin, G.R. No. 142523,
(2001)]
In civil cases, it is a procedural matter and not
jurisdictional, as compared to criminal cases,
where the venue is jurisdictional.
Venue relates only to the place of trial or the
geographical location in which an action or
proceeding should be brought. It is intended to
accord convenience to the parties and does not
equate to the jurisdiction of the court. [Dolot v.
Paje, G.R. 199199 (2013)]
Choosing the venue of an action is not left
entirely to a plaintiff’s caprice; the matter is
REMEDIAL LAW
regulated by the ROC. [Ang v. Sps. Ang, G.R.
No. 186993 (2012)]
On dismissal based on improper venue
Improper venue is no longer one of the
grounds for a motion to dismiss under the
Amended Rules. However, the ground of the
venue being improperly laid is one of those that
may be set as an Affirmative Defense in the
answer. The failure to raise the affirmative
defense in the answer will constitute a waiver
of such. [Sec 12, Rule 8]
However, the court may make a motu proprio
dismissal for improper venue, inter alia, in
actions covered by the Rules on Summary
Procedure [Sec. 4], Rule of Procedure for
Small Claims cases [Sec. 9], and in ejectment
cases. [Sec. 5, Rule 70]
a. Venue of Real Actions
Real actions shall be commenced and tried in
the proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof is situated.
Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real
property involved, or a portion thereof, is
situated.
[Sec. 1, Rule 4]
The rule, in its simplified form, means that if the
action is real, the action is local, as opposed
to transitory, and the venue is the place where
the real property involved, or any portion
thereof, is situated. [1 Riano 151, 2016 Bantam
Ed.]
Where the subject-matter of the action
involves various parcels of land situated in
different provinces, the venue is determined
by the singularity or plurality of the transactions
involving said parcels of land. Thus, where said
parcels are the objects of one and the same
transaction, the venue is in the court of any of
the provinces wherein a parcel of land is
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situated. [1 Regalado 118, 2010 Ed., citing El
Hogar Filipino v. Seva, G.R. No. 36627 (1932)]
b. Venue of Personal Actions
All other actions may be commenced and tried,
at the plaintiff’s election:
a. Where the plaintiff or any of the principal
plaintiffs resides, or
b. Where the defendant or any of the principal
defendants resides, or
c. In case of a non-resident defendant, where
he may be found. [Sec. 2, Rule 4]
The plaintiff or the defendant must be
residents of the place where the action has
been instituted at the time the action is
commenced [Ang v. Sps. Ang, G.R. No.
186993 (2012)]
Definition of residence
The term “resides” as employed in the rule
means the place of abode, whether
permanent or temporary, of the plaintiff or
defendant, as distinguished from “domicile”
which denotes a fixed permanent residence to
which, when absent, one has the intention of
returning. [Dangwa Transportation Company v.
Sarmiento, G.R. No. L-22795 (1977)]
The residence of a person is his personal,
actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency [Boleyley v. Villanueva, G.R. No.
128734 (1999)]
A corporation cannot be allowed to file
personal actions in a place other than its
principal place of business unless such
place is also the residence of a co-plaintiff or
defendant. [Davao Light v. CA, G.R. No.
111685 (2001)]
REMEDIAL LAW
c. Venue of Actions Against NonResidents
Non-resident found in the Philippines
a. Personal action: where the nonresident
defendant may be found, as authorized by
Sec. 2, Rule 4, but with an additional
alternative venue, i.e., the residence of any
of the principal plaintiffs, pursuant to Secs.
2 and 3, Rule 4. [1 Regalado 121, 2010
Ed.]
b. Real action: in the proper court which has
jurisdiction over the area wherein the real
property involved, or a portion thereof is
situated. [Sec. 1, Rule 4]
Non-resident not found in the Philippines,
and the action affects:
a. Personal status of plaintiff – where
plaintiff resides, or
b. Property of defendant in the Philippines
– where the property, or any portion
thereof, is situated or found [Sec. 3, Rule 4]
d. When the Rules on Venue Do
Not Apply
a. Cases where a specific rule or law provides
otherwise; examples:
1. Quo warranto proceeding commenced
by the Solicitor General, [Sec. 7, Rule
66]
• The action may be brought in the
Supreme Court, the Court of
Appeals, or in a Regional Trial
Court in the City of Manila.
2. Petition for a continuing writ of
mandamus, and [Sec. 2, Rule 8, Rules
of Procedure for Environmental Cases]
• The petition shall be filed with the
Regional Trial Court exercising
jurisdiction over the territory where
the actionable neglect or omission
occurred or with the Court of
Appeals or the Supreme Court.
3. Civil and criminal action for damages in
written defamation. [Art. 360, RPC]
• Note that for written defamations,
the default venue would be the
place where the libelous article is
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first published or where any of the
offended parties reside
In case that the offended party is a
public officer, the proper venue
would be either where he holds
office at the time of the commission
of the crime, or the place where the
libelous article is first published
[Art. 360, RPC]
b. Parties have validly agreed in writing before
the filing of an action on the exclusive venue
thereof.
[Sec. 4, Rule 4]
e. Effects
Venue
of
Stipulations
on
The parties may stipulate on the venue as long
as the agreement is:
a. In writing,
b. Made before the filing of the action, and
c. Exclusive as to the venue
Types of stipulations on venue
a. Restrictive: suit may be filed only in the
place agreed upon
b. Permissive: parties may file their suit not
only in the place agreed upon but also in
the places fixed by the rules
[Briones v. CA and Cash Asia, G.R. No.
204444 (2015)]
Requirement to be binding
To be binding, the parties must have agreed
on the exclusive nature of the venue of any
prospective action between them. The
agreement of parties must be restrictive and
not permissive [1 Regalado 124, 2010 Ed.]
In the absence of qualifying or restrictive
words (e.g. “only/solely/exclusively in such
court”),
venue
stipulation
is
merely
permissive; that is, the stipulated venue is in
addition to the venue provided for in the rules
[Polytrade Corp. v. Blanco, G.R. No. L-27033
(1969)]
When stipulation may be disregarded
The court may declare agreements on venue
as contrary to public policy if such stipulation
REMEDIAL LAW
unjustly denies a party a fair opportunity to
file suit in the place designated by the Rules.
The court shall take into consideration the
economic conditions of the parties, the
practical need to avoid numerous suits filed
against the defendant in various parts of the
country and the peculiar circumstances of the
case [1 Regalado 124-125, 2010 Ed., citing
Hoechst Philippines v. Torres, G.R. No. L44351 (1978)]
A complaint directly assailing the validity of
the written instrument itself should not be
bound by the exclusive venue stipulation
contained therein and should be filed in
accordance with the general rules on
venue. [Briones v. CA and Cash Asia, G.R. No.
204444 (2015)]
6. Pleadings
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate judgment
[Sec. 1, Rule 6]
Pleadings v. Motions
Pleadings
Purpose is to
submit a claim
or defense for
Purpose
appropriate
judgment [Sec.
1, Rule 6]
Judgment,
which by its
Relief
character
Sought
finally disposes
of the case
[1 Riano 339, 2005 Ed.]
Motion
Application for
relief
other
than
by
a
pleading [Sec.
1, Rule 15]
Other
reliefs
that are not
included in a
judgment
Ultimate facts are essential facts constituting
the plaintiff’s cause of action. A fact is essential
if it cannot be stricken out without leaving the
statement of the cause of action insufficient
[Remitere v. Montinola, G.R. No. L-19751
(1966)].
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Prior to the Amended Rules, evidentiary facts
were supposed to be omitted from pleadings,
as these matters should be presented during
trial. However, the contents of pleadings are no
longer limited to ultimate facts since under Sec.
6, Rule 7, the witnesses, summaries of their
testimonies, their judicial affidavits, and
documentary and object evidence should
already be included in the pleading. Likewise,
Sec. 1 of Rule 8 also states that every pleading
must contain the ultimate facts, including the
evidence on which the party pleading relies.
a. Kinds of pleadings and when
they should be filed
i. Complaint
The complaint is the pleading alleging the
plaintiff’s or claiming party’s cause or causes of
action. [Sec. 3, Rule 6]
Note: Counterclaims, cross-claims, third-party
complaints, and complaints-in-intervention are
kinds of complaints. [Sec. 2, Rule 6]
Function
1. To inform the defendant clearly and
definitely of the claims made against him so
that he may be prepared to meet the issues
at trial.
2. To inform the defendant of all material facts
on which the plaintiff relies to support his
demand.
3. To state the theory of a cause of action
which forms the basis of the plaintiff's claim
of liability [Tantuico v. Republic, G.R. No.
89114 (1991)]
Facts alleged in the complaint are judicial
admissions that bind the plaintiff and may be
the basis to dismiss the complaint [Luzon
Development Bank v. Conquilla, G.R. No.
163338 (2005)].
Allegations of the complaint determine the
nature of the cause of action and the body or
court which has jurisdiction over the action
[Ching vs Subic Bay Golf and Country Club,
Inc, G.R. No. 174353 (2014)]
ii. Answer
An answer is a pleading in which a defending
party sets forth his or her defenses. [Secs. 2
and 4, Rule 6]
1. Negative Defenses
A negative defense is the specific denial of
the material fact or facts alleged in the pleading
of the claimant essential to his or her cause or
causes of action. [Sec. 5 (a), Rule 6]
Note: A general denial is considered as an
admission. [1 Riano 293, 2016 Bantam Ed.]
There are three kinds of specific denials,
namely:
1. Absolute Denials - made when the
defendant
specifies
each
material
allegation which he does not admit and,
whenever practicable, sets forth the
substance of the matters upon which he
relies to support his denial. [PBCOM v. Go,
G.R. No. 175514 (2011)]
2. Partial Denials - made when the
defendant does not make a total denial of
the material allegations, but denies only a
part of the averment. Here, he specifies
which part of the truth he admits and
likewise denies. [1 Riano 269, 2016
Bantam Ed.]
3. Denial through Disavowal of Knowledge
- made when the defendant alleges he “is
without knowledge or information sufficient
to form a belief as to the truth of the
material averments in the complaint”.
[Warner Barnes v. Reyes, 103 Phil. 662
(1958)]
2. Negative Pregnant
A denial, pregnant with the admission of the
substantial facts in the pleading responded to
which are not squarely denied. It is in effect an
admission of the averment it is directed to.
[Philamgen v. Sweet Lines, G.R. No. 87434
(1993)]
A negative pregnant does not qualify as a
specific denial. It is conceded to be actually an
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admission. It refers to a denial which implies
its affirmative opposite by seeming to deny only
a qualification or an incidental aspect of the
allegation but not the main allegation itself [1
Riano 358, 2014 Bantam Ed.]
Examples: When the defense alleges “I have
never borrowed money from the plaintiff from
2011 to 2013,” such may imply that there was
borrowing of money at other times. [1 Riano
297, 2016 Bantam Ed.]
3. Affirmative Defenses
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 or her.
The affirmative defenses include 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.
Affirmative defenses may also include grounds
for the dismissal of a complaint, specifically:
1. That the court has no jurisdiction over the
subject matter
2. That there is another action pending
between the same parties for the same
cause (lis pendens), or
3. That the action is barred by a prior
judgment. [Sec. 5 (b), Rule 6]
Note: The foregoing three (3) grounds need not
be included in the answer due to the use of the
word “may”. Also note that these grounds for
dismissal (in addition to statute of limitations)
may still be raised at any time since they are
not waivable. [Sec. 1, Rule 9 in relation to Sec.
12 (a), Rule 15]
Further discussion on affirmative defenses
under 4. Allegations in a Pleading.
iii. Counterclaims
Any claim which a defending party may have
against an opposing party [Sec. 6, Rule 6]
Compulsory
Counterclaim
A
compulsory
counterclaim, which
a party has at the
time the answer is
filed,
shall
be
contained in the
answer [Sec. 8, Rule
11]
because
a
compulsory
counterclaim
not
raised in the same
action
shall
be
barred,
unless
otherwise allowed
by these rules.
[Sec. 7, Rule 6]
Not an initiatory
pleading
REMEDIAL LAW
Permissive
Counterclaim
Not subject to the
rule on compulsory
counterclaims.
Hence, it may be set
up
as
an
independent action
and will not be
barred
if
not
contained
in
an
answer
to
the
complaint.
Initiatory pleading
Should
be
accompanied by a
certification against
forum shopping and,
Said
certifications whenever required
are not required
by law, also a
certificate to file
action issued by the
Lupong
Tagapamayapa
Must be answered
by the party against
Failure to answer a
whom
it
is
compulsory
interposed,
counterclaim is not a
otherwise he may be
cause for a default
declared in default
declaration.
as
to
the
counterclaim
[1 Riano 385-387, 2014 Bantam Ed.]
How raised
1. By including it in the Answer
• A compulsory counterclaim or a crossclaim that a defending party has at the
time he or she files his or her answer
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shall be contained therein. [Rule 11,
Sec. 8]
2. By filing after the Answer
• Omitted Compulsory Counterclaim If a counterclaim already existed at the
time of the filing of the answer and the
defendant fails to raise it, it shall
generally be barred. [Sec. 7, Rule 6]
However, an exception to this would be
a counterclaim by amendment before
judgment, when the counterclaim was
not set up due to oversight,
inadvertence, or excusable neglect.
[Sec. 10, Rule 11]
•
REMEDIAL LAW
CIVIL PROCEDURE
Compulsory Counterclaim arising
after Answer - A counterclaim, which
either matured or was acquired by a
party after serving his answer may,
with permission of the court, be
presented as a counterclaim by
supplemental
pleading
before
judgment. [Sec. 9, Rule 11]
1. Compulsory
Requisites
1. It arises out of, or is connected with the
transaction or occurrence constituting the
subject matter of the opposing party's
claim,
2. It does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction, and
3. It must be within the jurisdiction of the court
both as to the amount and the
nature, except that in an original action
before the RTC, the counter-claim may be
considered compulsory regardless of the
amount. [Sec. 7, Rule 6]
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 in the complaint [Gojo
v. Goyala, G.R. No. L-26768 (1970)].
incompatible remedies. If he files a motion to
dismiss, he will lose 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. [Financial Building
Corp. v. Forbes Park Association, G.R. No.
133119 (2000)]
On amounts
1. In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount.
[Sec. 7, Rule 6]
2. If a counterclaim is filed in the MTC in
excess of its jurisdictional limits, the excess
is considered waived. [Agustin v. Bacalan,
G.R. No. L-46000 (1985)]
2. Permissive
A counterclaim is permissive if it does not
arise out of, nor is necessarily connected with,
the subject matter of the opposing party’s
claim. This is not barred even if not set up in
the action. [1 Herrera 686, 2007 Ed.] Basically,
a permissive counterclaim is one where any of
the aforementioned requirements of a
compulsory counterclaim are missing. [1 Riano
320, 2016 Bantam Ed.]
The rule in a permissive counterclaim is that for
the trial court to acquire jurisdiction, the
counterclaimant is bound to pay the prescribed
docket fees. [1 Riano 387, 2014 Bantam Ed.,
citing GSIS v. Heirs of Caballero, G.R. No.
158090 (2010)]
Note: Even if the counterclaim arises out of the
subject-matter of the opposing party's claim but
it is not within the jurisdiction of the regular
courts of justice, or it requires for its
adjudication the presence of third parties
over whom the court cannot acquire
jurisdiction, it is considered as only a
permissive counter­claim and is not barred
even if not set up in the action. (see also Sec.
2, Rule 9) [1 Regalado 143-144, 2010 Ed.]
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
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Determining whether a counterclaim is
compulsory or permissive
A positive answer on all four the following tests
would indicate that the counterclaim is
compulsory
a. Are the issues of fact and law raised by the
claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit
on defendant’s claims, absent the
compulsory counterclaim rule?
c. Will substantially the same evidence
support or refute the plaintiff's claim as well
as the counterclaim?
d. Is there any logical relation between the
claim and counterclaim?
[GSIS v. Heirs of Caballero, G.R. No. 158090
(2010)]
oversight, inadvertence, or excusable neglect.
[Sec. 10, Rule 11]
3. Effect on counterclaim when
complaint is dismissed
Improper cross-claims
1. Where the cross-claim is improperly
allowed, the remedy is certiorari [Malinao v.
Luzon Surety, G.R. No. L-16082 (1964)]
2. The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and executory
[Ruiz, Jr. v. CA, G.R. No. 101566 (1993)]
3. A cross-claim is not allowed after
declaration of default of cross-claimant. To
allow the cross-claim to remain would be
tantamount to setting aside the order of
default the cross-claimant, who had been
previously declared default, would reobtain a standing in court as party litigant
[Tan v. Dimayuga, G.R. No. L-15241
(1962)]
The dismissal of the complaint shall be without
prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in
the answer in the following cases
1. Dismissal under Sec. 2, Rule 17 – where
the plaintiff files a motion to dismiss the
case, after the defendant had filed a
responsive pleading
2. Dismissal under Sec. 3, Rule 17 – where
the complaint is dismissed due to the fault
of the plaintiff
iv. Cross-claims
A cross-claim is any claim by one party
against a co-party arising out of the transaction
or occurrence that is the subject matter either
of the original action or of a counterclaim
therein. Such cross- claim may cover all or part
of the original claim. [Sec. 8, Rule 6]
Cross-claim arising after Answer - A crossclaim, which either matured or was acquired by
a party after serving his answer may, with
permission of the court, be presented as a
cross-claim by supplemental pleading before
judgment. [Sec. 9, Rule 11]
When a cross-claim is proper
1. It arises out of the subject matter of the
complaint.
2. It is filed against a co-party.
3. The cross-claimant stands to be prejudiced
by the filing of the action against him
[Londres v. CA, G.R. No. 136427 (2002)]
v. Third
(fourth,
complaints
etc.)
party
Existing Cross-claim - A cross-claim that a
defending party has at the time he or she files
his or her answer shall be contained therein.
[Sec. 8, Rule 11]
A third (fourth, etc.) party complaint is a
claim that a defending party may, with leave of
court, file against a person not a party to the
action, called the third (fourth, etc.)-party
defendant
for
contribution,
indemnity,
subrogation or any other relief, in respect of his
or her opponent's claim. [Sec. 11, Rule 6]
However, an exception to this would be a
cross-claim by amendment before judgment,
when the counterclaim was not set up due to
Requisites
1. The party to be impleaded must not yet be
a party to the action
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2. The claim against the third-party defendant
must belong to the original defendant
3. The claim of the original defendant against
the third-party defendant must be based
upon the plaintiff's claim against the
original defendant,
4. The defendant is attempting to transfer to
the third-party defendant the liability
asserted against him by the original plaintiff
[Philtranco Service Enterprises, Inc. v.
Paras, G.R. No. 161909 (2012)], and
5. The court grants leave of court for the filing
of the same [Sec. 11, Rule 6]
When the third (fourth, etc.) party complaint
will not be granted leave, and the court will
require the filing of a separate action:
1. Where matters extraneous to the issue in
the principal case are raised, or
2. Where a new and separate controversy
would be introduced in the action. [Sec.
11, Rule 6]
When, despite grant of leave allowing the
filing of a third-party complaint, the court
dismisses the third (fourth) party complaint
1. The third-party defendant cannot be
located within 30 days from grant of leave.
[Sec. 11, Rule 6]
Additional rules
Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the thirdparty complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety, G.R. No. L27802 (1968)]
A third-party complaint is not proper in an
action for declaratory relief. [Commissioner of
Customs v. Cloribel, G.R. No. L-21036 (1977)]
vi. Complaint-in-intervention
Intervention is a remedy by which a third
party, not originally impleaded in a proceeding,
becomes a litigant therein to enable him to
protect or preserve a right or interest which
may be affected by such proceeding.
[Restaurante Las Conchas v. Llego, G.R. No.
119085 (1999), citing First Philippine Holdings
Corporation v. Sandiganbayan, G.R. No.
88345 (1996)]
Further discussion
Intervention
under
Section
11.
vii. Reply
A reply is a pleading, the office or function of
which is to deny, or allege facts in denial or
avoidance of new matters alleged in, or relating
to actionable documents attached to an
answer. This is so, because under the
Amended Rules, the plaintiff may file a reply
only if the defending party attaches an
actionable document to his or her answer.
[Sec. 10, Rule 6]
Note: An actionable document is a written
document that’s the basis of one’s cause of
action or defense. [1 Riano 280, 2016 Bantam
Ed.]
Note: The function of a reply is to merely deny
the allegations raised in the answer with the
actionable document, not to impose new
causes of action which arise from the answer.
If the plaintiff wants to interpose a new claim
on the basis of the actionable document
attached in the answer, he should do this
through an amended or supplemental
complaint.
1. The amended complaint must be with
leave of court following Sec. 3, Rule 10.
2. The supplemental complaint is allowed
only if it pertains to transactions,
occurrences, or events which have
happened since the date of the complaint
following Sec. 6, Rule 10.
A reply is not the proper responsive pleading to
a counterclaim or a cross-claim, as the proper
responsive pleading would be an answer to the
counterclaim/cross-claim. [1 Riano 335, 2016
Bantam Ed.]
If an actionable document is attached to the
reply, the defendant may file a rejoinder. The
rejoinder must only deny, or allege facts in
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denial or avoidance of the new matters alleged
in actionable document attached to the reply.
[Sec. 10, Rule 6]
General Rule: There is no need to file a reply
since all new matters alleged in the answer are
deemed controverted. [Sec. 10, Rule 6]
Exception: When an actionable document is
attached to the answer, the plaintiff must file a
reply in order to avoid the admission of the
genuineness and due execution of the
document attached. Failure to file a reply would
lead to the admission of the aforementioned
matters. [1 Riano 336, 2016 Bantam Ed.]
viii. Extensions of time to file
General Rule:
A motion for extension to file any pleading is
prohibited and is considered a mere scrap of
paper. [Sec. 11, Rule 11]
A motion for extension of time to file pleadings,
affidavits, or any other papers is a prohibited
motion and shall not be allowed. [Sec. 12 (e),
Rule 15]
Exception:
A motion for extension of time to file an
answer may be allowed if:
1. For meritorious reasons,
2. For a period not more than 30 calendar
days, and
3. A party may only avail of 1 motion for
extension
The court may still allow, in its discretion, any
other pleading to be filed after the time fixed by
the Rules. [Sec. 11, Rule 11]
b. Pleadings allowed in small
claims
cases
and
cases
covered by the Rules on
Summary Procedure
i. Revised Rules of Procedure for
Small Claims Cases
REMEDIAL LAW
Forms
1. 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 Against Forum Shopping,
Splitting a Single Cause of Action, and
Multiplicity of Suits (Form 1-A-SCC)
[Sec. 6]
2. The Summons to be served on the
defendant shall be accompanied by a copy
of the Statement of Claim/s and documents
submitted by plaintiff, and a blank
Response Form (Form 3-SCC) to be
accomplished by the defendant [Sec. 12].
The defendant shall file with the court and
serve on the plaintiff a duly accomplished
and verified Response within a nonextendible period of 10 days from receipt of
summons [Sec. 13].
a. 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
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 suing on the counterclaim
[Sec. 15].
b. 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. 15].
Prohibited pleadings and motions
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial
4. Petition for relief from judgment
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5. Motion for extension of time to file
pleadings, affidavits, or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints, and
12. Interventions [Sec. 14]
ii. Rule on Summary Procedure
Allowed Pleadings
1. Complaints
2. Compulsory counterclaims pleaded in the
Answer
3. Cross-claims pleaded in the Answer; and
4. Answers thereto [Sec. 3[A], II]
Prohibited pleadings, motions, or petitions
1. Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the
subject matter, or failure to comply with
required
barangay
conciliation
proceedings
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for opening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints, and
12. Interventions [Sec. 19]
c. Parts and
Pleading
Contents
of
a
i. Caption
Sets forth the:
1. Name of the court
2. Title of the action (i.e. the names of the
parties and respective participation) and
3. The docket number, if assigned
[Sec. 1, Rule 7]
Body – Sets forth the pleading’s designation,
the allegations of party's claims or defenses,
the relief prayed for, and its date
1. 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.
2. Headings
When two or more causes of action are joined,
the statement of the first shall be prefaced by
the words “first cause of action," of the second
by "second cause of action," and so on for the
others.
When one or more paragraphs in the answer
are addressed to one of several causes of
action in the complaint, they shall be prefaced
by the words "answer to the first cause of
action" or "answer to the second cause of
action" and so on; and when one or more
paragraphs of the answer are addressed to
several causes of action, they shall be
prefaced by words to that effect.
3. 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.
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General Rule: It is a settled rule that a court
cannot grant a relief not prayed for by a party
in the pleadings, or in excess of that being
sought. [Bucal v. Bucal, G.R. No. 206957
(2015)]
Exception: Because the rules allow a general
prayer for such other reliefs as may be deemed
just and equitable, the court may grant reliefs
that are not specifically prayed for as long as
they are just and equitable. [1 Riano 257, 2016
Bantam Ed.]
4. Date
Every pleading shall be dated. [Sec. 2, Rule 7]
On whom sanction imposed:
The attorney, law firm, or the party that violated
the rule.
Note: The law firm shall be jointly and severally
liable for a violation committed by its partner,
associate, or employee.
Sanction may include, but shall not be
limited to:
a. Non-monetary directive or sanction
b. An order to pay a penalty in court
c. An order directing payment of attorney’s
fees and other expenses
Note: the lawyer or law firm cannot pass on the
monetary penalty to the client. [Sec. 3, Rule 7]
ii. Signature and address
Every pleading and other written submissions
to the court must be signed by the party or
counsel representing him or her. [Sec. 3, Rule
7]
The signature of counsel constitutes a
certificate that he or she has read the pleading
and document and that such pleading or
document:
a. Is not being presented for any improper
purpose to harass, delay, or increase cost
of litigation
b. Has claims, defenses, and other legal
contentions that are warranted by law or
jurisprudence, and not merely based on
frivolous
arguments
contrary
to
jurisprudence
c. Has factual contentions that have
evidentiary basis or will most likely be
supported by evidence after availment of
modes of discovery, and
d. The denials of facts are based on evidence
or based on belief of lack of information if
specially so identified. [Sec. 3, Rule 7]
Effect of violation of the rule:
The court may on motion or motu proprio, after
notice and hearing, impose an appropriate
sanction or refer such to the proper office for
disciplinary action, unless exceptional
circumstances are present.
Under the old rules, an unsigned pleading may
be remedied if it was due to mere inadvertence
and not intended for delay. However, under the
Amended Rules, an unsigned pleading may
no longer be remedied since the provision for
such has been deleted from the amended rules
of court. The lawyer, law firm, or party
responsible for filing an unsigned pleading may
thus be sanctioned under this rule unless there
are exceptional circumstances. Also note that
an unsigned pleadings remains to be without
legal effect, and is treated as “a mere scrap of
paper.”
iii. Verification
General Rule: Pleadings need not be under
oath or verified. [Sec. 4, Rule 7]
Exception: When otherwise specifically
required by law or rule. [Sec. 4, Rule 7]
The following pleadings require verification, to
wit:
1. Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure [Sec. 3B, Revised Rules on
Summary Procedure]
2. Petition for relief from judgment or order
[Sec. 3, Rule 38]
3. Petition for review from RTC to the CA
[Sec. 1, Rule 42]
4. Petition for review from quasi-judicial
agencies to the CA [Sec. 5, Rule 43]
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5. Appeal by certiorari from the CTA to the SC
[Sec. 12, R.A. 9282 amending Sec. 19,
R.A. 1125]
6. Appeal by certiorari from CA to the SC
[Sec. 1, Rule 45]
7. Petition for annulment of judgments or final
orders and resolutions [Sec. 1, Rule 47]
8. Complaint for injunction [Sec. 4, Rule 58]
9. Application for appointment of receiver
[Sec. 1, Rule 59]
10. Application for support pendente lite [Sec.
1, Rule 69]
11. Petition for certiorari against judgments,
final orders, or resolutions of constitutional
commissions [Sec. 2, Rule 64]
12. Petition for certiorari [Sec. 1, Rule 65]
13. Petition for prohibition [Sec. 2, Rule 65]
14. Petition for mandamus [Sec. 3, Rule 65]
15. Petition for quo warranto [Sec. 1, Rule 66]
16. Complaint for expropriation [Sec. 1, Rule
67]
17. Complaint for forcible entry or unlawful
detainer [Sec. 4, Rule 70]
18. Petition for indirect contempt [Sec. 4, Rule
71]
19. Petition for appointment of a general
guardian [Sec. 2, Rule 93]
20. Petition for leave to sell or encumber
property of the ward by a guardian [Sec. 1,
Rule 95]
21. Petition for declaration of competency of a
ward [Sec. 1, Rule 97]
22. Petition for habeas corpus [Sec. 3, Rule
102]
23. Petition for change of name [Sec. 2, Rule
103]
24. Petition for voluntary judicial dissolution of
a corporation [Sec. 1, Rule 104]
25. Petition for cancellation or correction of
entries in the civil registry [Sec. 1, Rule
108]
How Verified
By an affidavit under oath with the following
attestations:
a. The allegations in the pleading are true and
correct based on personal knowledge or
authentic documents;
b. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
c. The factual allegations therein have
evidentiary support or, if specifically so
identified, will likewise have evidentiary
support after a reasonable opportunity for
discovery.
The authorization of the affiant to act on
behalf of the party, whether in the form of a
secretary’s certificate or a special power of
attorney, should be attached to the pleading.
[Sec. 4, Rule 7]
Note: It is submitted that the requirement of the
attachment of the document of authorization
implies that the authority of such person may
no longer be proven during trial. This,
therefore, overturns existing jurisprudence
which provides that proof of one’s authority to
sign a verification may be taken up during trial.
[246 Corp v. Daway, G.R. No. 157216 (2003)]
Proof of authority should already be
established by attaching said proof to the
pleading.
Effect of noncompliance or defective
verification
General Rule: A pleading required to be
verified that 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. [Sec. 4, Rule 7]
Note: An unsigned pleading produces no legal
effect and is a “mere scrap of paper.”
Exception: Lack of verification is a mere
formal, and not a jurisdictional, requirement. As
such, a defect in the verification does not
render the pleading fatally defective and the
court may order its subsequent submission
or correction if such serves the ends of
justice. [Vda. de Formoso v. PNB, 650 SCRA
35 (2001)]
iv. Certification
Shopping
Against
Forum
Forum shopping
The repeated availment of several judicial
remedies in different courts, simultaneously or
successively, all substantially founded on the
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same transactions and the same essential
facts and circumstances, and all raising
substantially the same issues, either pending in
or already resolved adversely by some other
court [Asia United Bank v. Goodland Company,
Inc., G.R. No. 191388 (2011)]
Test to determine existence of forum
shopping
Whether in the two or more cases pending,
there is identity of
1. Parties
2. Rights or causes of action, and
3. Relief sought
[Huibonhoa v. Concepcion, G.R. No. 153785
(2005)]
Certificate of Non-Forum Shopping (CNFS)
The plaintiff or principal party shall certify
under oath in the complaint or other
initiatory pleading asserting a claim for relief
or in a sworn certification annexed thereto and
simultaneously filed therewith
1. That he or she has not 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 is pending
2. If there is such other pending action or
claim, a complete statement of the present
status thereof, and
3. If he or she should learn that the same or a
similar action or claim has been filed or is
pending, he shall report that fact within 5
calendar days to the court wherein his
aforesaid complaint or initiatory pleading
has been filed. [Sec. 5, Rule 7]
What pleadings require a certification
against non-forum shopping (Initiatory
pleadings)
1. Complaint
2. Permissive counterclaim
3. Cross-claim
4. Third (fourth, etc.) party complain
5. Complaint-in-intervention
Who signs:
General Rule: Plaintiff or Principal party
Rationale: The plaintiff, not the counsel, is in
the best position to know whether he or it has
actually filed or caused the filing of a petition.
Certification signed by counsel without proper
authorization is defective, and a valid cause for
dismissal [Anderson v. Ho, G.R. No. 172590
(2013)]
Exception:
counsel
Authorized
person,
usually
If, for justifiable reasons, the party-pleader is
unable to sign, he must execute a Special
Power of Attorney designating his counsel of
record to sign on his behalf [Vda. de Formoso
v. PNB, G.R. No. 154704 (2011)] In cases of a
juridical entity, the certification may be
executed by a properly authorized person
through due authorization by a board
resolution. [Cosco v. Kemper, 670 SCRA 343
(2012)]
Note: Similar to the new requirement under
verification, the authorization of the affiant to
act on behalf of the party, should be attached
to the pleading.
Effect of noncompliant CNFS
Defect
Effect
Not curable by mere
amendment of the
complaint or other
initiatory pleading
Failure to comply
with
the Cause for dismissal
requirements
of the case, without
prejudice,
unless
otherwise provided,
upon motion and
after hearing
False certification
Constitutes indirect
contempt of court,
Non-compliance with
without prejudice to
any
of
the
administrative and
undertakings therein
criminal actions
When there is willful Ground for summary
and deliberate forum dismissal,
with
shopping
prejudice
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Direct contempt of
court
Cause
administrative
sanctions
for
[Sec. 5, Rule 7]
v. Contents of a Pleading
Every pleading stating a party's claims or
defenses shall, in addition to those mandated
by Section 2, Rule 7, state the following:
a. Names of witnesses who will be
presented to prove a party's claim or
defense;
b. Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be
attached to the pleading and form an
integral part thereof, and
General Rule:
Only witnesses whose judicial affidavits
areattached to the pleading shall be
presented by the parties during trial.
Exception:
If a party presents meritorious reasons as
basis for the admission of additional
witnesses
c. Documentary and object evidence in
support of the allegations contained in the
pleading. [Sec. 6, Rule 7]
Rationale:
To ensure that a person filing a case or a
pleading would, at the time of filing, already
have evidentiary basis to back the same up,
and there would be no delay caused by parties
still trying to find evidence as basis for the
claims during the pendency of the case.
Moreover, all papers and pleadings filed in
court must likewise bear the following items:
1. Professional Tax Receipt Number
2. IBP Official Receipt Number
3. Roll of Attorneys’ Number
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4. MCLE Certificate of Compliance, or
Certificate of Exemption
Note: Failure to comply with the first three
requirements allow the court to not take action
with the pleading, without prejudice to possible
disciplinary actions against the erring counsel.
Failure to comply with the fourth requirement
causes the dismissal of the case and
expunction of the pleadings from the records.
[1 Riano 262-263, 2016 Bantam Ed.]
d. Allegations in a pleading
Every pleading shall contain in a methodical
and logical form:
1. a plain, concise and direct statement of the
ultimate facts,
2. the evidence on which the party pleading
relies for his or her claim or defense, as the
case may be
3. If the cause of action or defense is based
on law, the pertinent provisions of the law
and its applicability. [Sec. 1, Rule 8]
Alternative Causes of Action
A party may set forth two or more claims or
defenses alternatively in one cause of action.
Such happens when a party is not certain
which cause of action would squarely fit the set
of facts alleged in the complaint. [1 Riano 278,
2016 Bantam Ed.]
Also. a pleading which alleges alternative
causes of action is not made insufficient by the
insufficiency of one or more of the alternative
statements as long as one of them is sufficient.
[Sec. 2, Rule 8]
Example: A plaintiff may be unsure as to
whether the liability of the carrier is based
either on breach of contract or a quasi-delict.
The rules allow him to state both causes of
action in the alternative. [1 Riano 278, 2016
Bantam Ed.]
i. Manner of making allegations
How to allege the following in a pleading:
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1. Capacity to sue or be sued
The following must be averred, to wit:
a. Facts showing the capacity of a person
to sue or be sued,
b. The authority of a party, to sue and be
sued in a representative capacity, or
c. The legal existence of an organized
association of persons that is made a
party.
Moreover, a party desiring to raise an issue as
to the legal existence of any party to sue or be
sued in a representative capacity must do so
via specific denial. [Sec. 4, Rule 8]
2. Judgments
In pleading a judgment or decision of either
a domestic or a foreign court, judicial or
quasi-judicial tribunal, or a board or officer,
it is sufficient to aver the judgment or
decision without setting forth matter
showing jurisdiction to render it.
However, under the Amended Rules, an
authenticated copy of the judgment or
decision pleaded must be attached to the
pleading. [Sec. 6, Rule 8]
3. Official documents or acts
In pleading official documents or acts, it is
sufficient to aver that the document was
issued or the act was done in compliance
with law. [Sec. 9, Rule 8]
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Examples of conditions precedent:
a. A tender of payment is required before
making a consignation [Art. 1256, NCC]
b. Exhaustion of administrative remedies is
required in certain cases before resorting
to judicial action [Lopez v. City of Manila,
G.R. No. 127139 (1999); Dy v. CA, G.R.
No. 121587 (1999)]
c. Prior resort to barangay conciliation
proceedings is necessary in certain cases
[Book III, Title I, Chapter 7, LGC]
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, FC]
e. Arbitration may be a condition precedent
when the contract between the parties
provides for arbitration first before recourse
to judicial remedies
[1 Riano 333-334, 2014 Bantam Ed.]
Note: The failure to comply with a condition
precedent before the filing of a complaint is no
longer a ground for an allowable motion to
dismiss under the Amended Rules. However, it
is an affirmative defense that must be set out
in the answer or else, it is deemed waived.
[Sec. 12, Rule 8]
2. Fraud, mistake, malice, intent,
knowledge and other condition
of the mind, judgments, official
documents or acts
1. Condition precedent
In any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. [Sec. 3, Rule 8]
All valid conditions precedent to the institution
of the particular action, whether prescribed by
statute, fixed by agreement of the parties or
implied by law must be performed or complied
with before commencing the action, unless the
conduct of the adverse party has been such as
to prevent or waive performance or excuse
non-performance of the condition. [Anchor
Savings Bank v. Furigay, G.R. No. 191178
(2013)]
Fraud, mistake, malice, intent, knowledge,
and other condition of the mind
In all averments of fraud or mistake, the
circumstances constituting fraud or
mistake must be stated with particularity.
[Sec. 5, Rule 8]
Rationale:
The reason for this rule is that an allegation of
fraud concerns the morality of the defendant’s
conduct and he is entitled to know fully the
ground on which the allegations are made, so
he may have every opportunity to prepare his
case to clear himself at the trial [Guy v. Guy,
G.R. No. 189486 (2012)]
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Malice, intent, knowledge or other condition of
the mind of a person may be averred generally
[Sec. 5, Rule 8]
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Effect of failure to deny under oath
The genuineness and due execution of the
actionable document is deemed admitted.
[Sec. 8, Rule 8]
ii. Pleading an actionable document
Actionable document
Whenever an action or defense is based or
founded upon a written instrument or
document, said instrument or document is
deemed an actionable document [1 Riano
359, 2014 Bantam Ed.]
Pleading the document
1. The substance of such document shall be
set forth in the pleading, and
2. The original or a copy thereof shall be
attached to the pleading as an exhibit.
[Sec. 7, Rule 8]
Note: The Amended Rules deleted the
provision allowing for the copying of the
instrument on the pleading. Therefore, such is
no longer allowed as a means of pleading an
actionable document. This means that setting
forth the substance of the actionable
document and the attachment of such to the
pleading is the only way to plead the document
under the Amended Rules.
A variance in the substance of the document
set forth in the pleading and the document
annexed thereto does not warrant dismissal of
the action. [Convets Inc. v. National Dev. Co.,
G.R. No. L-10232 (1958)]
How to contest an actionable document
General rule:
The adverse party, under oath, specifically
denies them, and sets forth what he or she
claims to be the facts
Exceptions: The requirement of an oath does
not apply when:
1. The adverse party does not appear to be a
party to the instrument, or
2. Compliance with an order for an inspection
of the original instrument is refused. [Sec.
8, Rule 8]
Meaning of due execution and genuineness
That the party whose signature it bears admits
that he signed it or that it was signed by another
for him with his authority; that it was in words
and figures exactly as set out in the pleading of
the party relying upon it; that the document was
delivered and that any formal requisites
required by law, such as a seal, an
acknowledgment, or revenue stamp, which it
lacks, are waived by him [Hibberd v. Rohde
and Mcmillian, G.R. No. 8418 (1915)]
iii. Specific denials
The purpose of requiring the defendant to
make a specific denial is to make him disclose
the matters alleged in the complaint which he
succinctly intends to disprove at the trial,
together with matters which he relied upon to
support the denial. [Philippine Bank of
Communications v. Go, G.R. No. 175514
(2011)]
A denial does not become specific merely
because it is qualified by the word “specific” or
“specifically”. [Republic v. Gimenez, G.R. No.
174673 (2016)]
Material averments in any pleading asserting
a claim, other than those as to the amount of
unliquidated damages, shall be deemed
admitted when not specifically denied. [Sec.
11, Rule 8]
Note: Under the previous Rules, only material
averments in the complaint were deemed
admitted if not specifically denied. Under the
Amended Rules widens the scope of such rule
to include any pleading asserting a claim. It
is submitted, therefore, that this rule now
covers:
1. Counterclaims
2. Cross-claims (both compulsory and
permissive)
3. Third (fourth, etc.) party complaints, and
4. Complaints-in-intervention.
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As to answers, any new allegations set forth
therein are deemed controverted. [Sec. 10,
Rule 6]
1. Effect of failure to make specific
denials
General rule: Material averments in a pleading
asserting a claim or claims shall be deemed
admitted when not specifically denied [Sec. 11,
Rule 8]
Exceptions:
The following averments in the complaint are
not deemed admitted even if not specifically
denied:
1. Amount of unliquidated damages [Sec. 11,
Rule 8]
2. Conclusions in a pleading, because it is for
a court to make conclusions, and
3. Non-material allegations or averments,
because the rules provide that only
material allegations have to be denied. [1
Riano 300, 2016 Bantam Ed.]
2. When a specific denial requires
an oath
Specific denial under oath is required for the
denial of the genuineness and due execution of
an actionable document. But, as previously
mentioned, an oath is not required when the
adverse party does not appear to be a party to
the instrument or when compliance with an
order for inspection of the original instrument is
refused. [Sec. 8, Rule 8]
Note: The provisions on usury were deleted by
the amended rules.
iv. Affirmative defenses
A defendant shall raise his or her affirmative
defenses in the answer. [Sec. 12, Rule 8]
The grounds shall be limited to those under
Sec. 5(b), Rule 6 and those enumerated under
Sec. 12, Rule 8.
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Thus, the following are the affirmative
defenses that should be raised in the answer:
Under Sec. 5(b), Rule 6, 1st paragraph:
1. Fraud,
2. Statute of limitations,
3. Release,
4. Payment,
5. Illegality,
6. Statute of frauds,
7. Estoppel,
8. Former recovery,
9. Discharge in bankruptcy, and
10. Any other matter by way of confession and
avoidance.
Note: The court is allowed to conduct a
summary hearing within 15 calendar days
from the allegation of these affirmative
defenses in the answer. After such hearing,
they must be resolved by the court within 30
calendar days from the end of the summary
hearing. [Sec. 12(d), Rule 8]
Under Sec. 5(b), Rule 6, 2nd paragraph
11. Lack of jurisdiction over the subject matter;
12. Litis pendentia, and
13. Res judicata.
Note: Curiously, the Amended Rules do not
provide a time for which the court must act on
these grounds when they are alleged as
affirmative defenses in the answer. Section 12,
Rule 8 merely provides for a period for the
affirmative defenses listed in the first
paragraph of Sec. 5(b), Rule 6 and not for
those listed under the second paragraph of
such rule.
Under Sec. 12, Rule 8:
14. Lack of jurisdiction over the person of the
defendant,
15. Improper venue,
16. Lack of legal capacity to sue of the plaintiff,
17. Failure to state a cause of action, and
18. Failure to comply with a condition
precedent.
Note: The court must motu proprio resolve
these affirmative defenses within 30 calendar
days from the filing of the answer. [Sec. 12(c),
Rule 8]
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Effect of failure to raise the affirmative
defense at the earliest opportunity
General rule: Failure to raise an affirmative
defense in the answer or at the earliest
opportunity constitutes a waiver of the
defense.
Exception: Non-waivable grounds
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations. [Sec. 1, Rule 9]
Note: If the non-waivable grounds are not
raised in the answer, the Amended Rules
allow them to be proper grounds for a
motion to dismiss. [Sec. 12, Rule 15] With the
deletion of Rule 16, and consequently the time
for filing of a motion to dismiss, it seems that
the Amended Rules do not provide for a
specific period where the filing of a motion to
dismiss may be done.
Remedy if the affirmative defense is denied
Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration, or a
petition
for
certiorari,
prohibition,
or
mandamus, but may be among the matters to
be raised on appeal after a judgment on the
merits. [Sec. 12(e), Rule 8]
3. Upon the court’s own initiative at any time.
[Sec. 13, Rule 8]
e. Effect of failure to plead
i. Failure to plead defenses and
objections
General rule: Defenses and objections not
pleaded in either a motion to dismiss or in the
answer are deemed waived [Sec. 1, Rule 9]
Exceptions:
The court shall dismiss the case when it
appears from the pleadings or the evidence on
record that:
1. The court has no jurisdiction over the
subject matter,
2. There is another action pending between
the same parties for the same cause (litis
pendentia),
3. The action is barred by a prior judgment
(res judicata), or
4. The action is barred by statute of limitations
(prescription). [Sec. 1, Rule 9]
Note: The Amended Rules provide that the
aforementioned grounds are the only grounds
allowed in a motion to dismiss. [Sec. 12 (a),
Rule 15]
Note: If denied, the case will proceed to trial.
The defendant may raise the matter on appeal
after judgment on the merits.
v. Striking out of a pleading
The court may order any pleading to be
stricken out or that any sham or false,
redundant,
immaterial,
impertinent,
or
scandalous matter be stricken out therefrom.
[Sec. 13, Rule 8]
How done
1. Upon motion by a party before responding
to a pleading;
2. Upon motion by a party within 20 calendar
days after service of the pleading upon him
or her, if no responsive pleading is allowed
by the rules; or
ii. Failure to plead compulsory
counterclaim and cross-claim
General rule: A compulsory counterclaim, or a
cross-claim, not set up shall be barred. [Sec. 2,
Rule 9]
Exceptions:
1. Omitted Counterclaim or Cross-claim
When a pleader fails to set up a
counterclaim or cross-claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, he may,
by leave of court, set up the counterclaim or
cross-claim by amendment before
judgment. [Sec. 10, Rule 11]
2. Counterclaim
Answer
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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.
[Sec. 9, Rule 11]
f. Default
Failure of the defending party to answer within
the time allowed therefor. [Sec. 3, Rule 9]
Dual stages of default
Order of default
Judgment by
default
Issued by the court
on plaintiff’s motion Rendered by the
and at the start of the court following an
proceedings,
for order of default,
failure
of
the when the court has
defendant
to received ex parte the
seasonably file his plaintiff’s evidence
responsive pleading.
[1 Regalado 191, 2010 Ed.]
i. When declaration of default is
proper
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2. The defending party must have failed to
file his answer within the time allowed
therefor;
3. The claiming party must file a motion to
declare the defending party in default;
4. The claiming party must prove that the
defending party has failed to answer within
the period provided by the ROC;
[Sablas v. Sablas, G.R. No. 144568 (2007)]
5. The defending party must be notified of
the motion to declare him in default; and
[Sec. 3, Rule 9]
6. There must be a hearing set on the motion
to declare the defending party in default
[Spouses de los Santos v. Carpio, G.R. No.
153696 (2006)]
[1 Riano 364, 2014 Bantam Ed.]
ii. Effect of an order of default
A party in default shall be entitled to notices
of subsequent proceedings but shall not take
part in the trial. [Sec. 3, Rule 9] The party
declared in default loses his standing in court.
The loss of such standing prevents him from
taking part in the trial. He forfeits his rights as a
party litigant, has no right to present evidence
supporting his allegations, to control the
proceedings, or cross-examine witnesses. [1
Riano 305, 2016 Bantam Ed.]
The rule on default clearly establishes the
“failure to answer within the time allowed
therefor” as the ground for a declaration of
default [Sec. 3, Rule 9].
A party in default may still participate as a
witness. [Cavili v. Florendo, G.R. No. 73039
(1987)]
Failure to attend the pre-trial does not result
in the "default" of the defendant. Instead, the
failure of the defendant to attend shall be cause
to allow the plaintiff to present his evidence ex
parte and the court to render judgment on the
basis thereof [Aguilar v. Lightbringers Credit
Cooperative, G.R. No. 209605 (2015)]
The court may either:
a. Proceed to render judgment granting the
claimant such relief as his or her pleading
may warrant, or
b. Require the claimant to submit evidence;
such reception of evidence may be
delegated to the clerk of court.
[Sec. 3, Rule 9]
Requisites before a declaration of default
1. The court must have validly acquired
jurisdiction over the person of the
defending party, either by service of
summons or voluntary appearance;
A declaration of default is not tantamount to
an admission of the truth or validity of the
plaintiff’s claims. [Monarch Insurance v. CA,
G.R. No. 92735 (2000)]
A defending party declared in default retains
the right to appeal from the judgment by
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default. However, the grounds that may be
raised in such an appeal are restricted to any
of the following:
a. The failure of the plaintiff to prove the
material allegations of the complaint;
b. The decision is contrary to law; and
c. The amount of judgment is excessive or
different in kind from that prayed for.
In these cases, the appellate tribunal should
only consider the pieces of evidence that were
presented by the plaintiff during the ex parte
presentation of his evidence. [Otero v. Tan,
G.R. No. 200134 (2012)]
iii. Relief from an order of default
Relief before judgment
File a motion under oath to set aside the order
of default upon proper showing that:
a. His or her failure to answer was due to
fraud, accident, mistake or excusable
negligence, and
b. He has a meritorious defense - such that
the motion must be accompanied by a
statement of the evidence which he intends
to present if the motion is granted and
which is such as to warrant a reasonable
belief that the result of the case would
probably be otherwise if a new trial is
granted [Kilosbayan v. Janolo, G.R. No.
180543 (2010)] [Sec. 3(b), Rule 9]
In such a case, the order of default may be set
aside in such terms and conditions as the judge
may impose in the interest of justice. [Sec. 3(b),
Rule 9]
Relief after judgment but before it has
become final and executory
The party declared in default may file:
a. a motion for new trial under Sec. 1(a), Rule
37 [Lina v. CA, G.R. No. L-63397 (1985)],
or
b. an appeal from the judgment as being
contrary to the evidence or the law
[Republic v. Sandiganbayan, G.R. No.
148154 (2007), cited in 1 Riano 373, 2014
Bantam Ed.]
Relief after judgement has become final and
executory
He may file a petition for relief under Rule 38
[Lina v. CA, G.R. No. L-63397 (1985)]
These remedies presuppose that the
defending party was properly declared in
default, but it is submitted, however, that
certiorari will lie when said party was
improperly declared in default. [1 Riano 374,
2014 Bantam Ed.]
iv. Effect of a partial default
Partial default takes place when the complaint
states a common cause of action against
several defendants, and only some of whom
answer. [Sec. 3, Rule 9]
Effects
1. The court should declare defaulting
defendants in default, and proceed to trial
on answers of others
2. If the defense is personal to the one who
answered, it will not benefit those who did
not answer.
v. Extent of relief
A judgment rendered against a party in default
shall neither:
1. Exceed the amount,
2. Be different in kind from that prayed for, nor
3. Award unliquidated damages. [Sec. 3(d),
Rule 9]
The fact that the defendant was declared in
default is of no moment when the plaintiff would
not have been entitled to relief since his
complaint did not state a cause of action, hence
the same should be dismissed. [1 Regalado
193, 2010 Ed., citing Reyes v. Tolentino, G.R.
No. L-29142 (1971)].
vi. Actions where default are not
allowed
In case of failure to file an answer in an action
for:
1. Annulment or declaration of nullity of
marriage, or
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2. Legal separation
The court shall order the Solicitor General, or
his or her deputized public prosecutor:
1. To investigate whether or not a collusion
between the parties exists, or
2. To intervene for the State in order to see
to it that the evidence submitted is not
fabricated, if there is no collusion. [Sec.
3(e), Rule 9]
Other instances where default is not
allowed:
1. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is required
to be filed. [Sec. 6, Rule 65]
2. Cases covered by the Rule on Summary
Procedure [See Sec. 6, Rule on Summary
Procedure, which requires the court to
render. judgment if the defendant fails to
answer]
3. In expropriation proceedings, whether or
not a defendant has previously appeared
or answered, he may present evidence as
to the amount of compensation to be paid
for his property in the trial of the issue of
just compensation. [Sec. 3(2), Rule 67]
g. Filing and service of pleadings
Coverage
The filing of all pleadings, motions, and
other court submissions, as well as the
service thereof, except those for which a
different mode of service is prescribed. [Sec. 1,
Rule 13]
Note: Due to the revision, the rule now
contemplates filing of submissions that are not
paper-based, such as those made through
electronic means.
Papers required to be filed and served
a. Judgment
b. Resolution
c. Order
d. Pleading subsequent to the complaint
e. Written motion
f. Notice
g. Appearance
REMEDIAL LAW
h. Demand
i. Offer of judgment; or
j. Similar papers. [Sec. 4, Rule 13]
i. Payment of Docket Fees
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payment
of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or
nature of the action [Proton Pilipinas v. Banque
National de Paris, G.R. No. 151242 (2005)]
Payment of docket fees is mandatory and
jurisdictional
[National
Transmission
Corporation v. Heirs of Teodulo Ebesa, G.R.
No. 186102 (2016)].
EFFECT OF FAILURE TO PAY DOCKET
FEES AT FILING
a. The Manchester Rule
● Automatic Dismissal
● Any defect in the original pleading
resulting in underpayment of the
docket fees cannot be cured by
amendment, such as by the reduction
of the claim as, for all legal purposes,
there is no original complaint over
which the court has acquired
jurisdiction
[Manchester v. CA, G.R. No. 75919 (1987)]
b. Relaxation of the Manchester Rule (Sun
Insurance Doctrine)
● NOT automatic dismissal
● Court may allow payment of fees within
a reasonable time, but in no case
beyond the expiration of the applicable
prescriptive period of the action filed
[Sun Insurance v. Asuncion, G.R. No.
79937 (1989)]
c.
Page 56 of 525
Exception to the Sun Insurance doctrine
– The Sun Insurance rule allowing payment
of deficiency does not apply where plaintiff
never demonstrated any willingness to
abide by the Rules to pay the docket fee
but stubbornly insisted that the case filed
was one for specific performance and
U.P. LAW BOC
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damages [Gochan v. Gochan, G.R. No.
146089 (2001)]
d. Further modification
● Docket fees as lien
● Where the trial court acquires
jurisdiction over a claim by the filing of
the pleading and the payment of the
prescribed filing fee, but subsequently,
the judgment awards a claim not
specified in the pleading, or cannot
then be estimated, or a claim left for
determination by the court, then the
additional filing fee shall constitute a
lien on the judgment
[Heirs of Hinog v. Melicor, G.R. No. 140954
(2005)]
e. Limitation on the claims covered by
fees as lien
Claims not specified or claims although
specified are left for determination of the
court are limited only to any damages that
may arise after the filing of the complaint or
similar pleading for then it will not be
possible for the claimant to specify nor
speculate as to the amount thereof
[Metrobank v. Perez, G.R. No. 181842
(2010)]
ii. Distinguish: Filing and Service of
Pleadings
Filing is the act of submitting the pleading or
other paper to the court. [Sec. 2, Rule 13]
Service is the act of providing a party with a
copy of the pleading or any other court
submission. [Sec. 2, Rule 13]
iii. Periods of Filing of Pleadings
Responsive
Pleadings [Rule
11]
Period
Within 30
Answer to the
calendar
complaint [Sec. 1]
days
(unless a
different
Reckoning
Point
Service of
summons
REMEDIAL LAW
period is
fixed by
the court)
Answer
of
a
defendant foreign
private
juridical
entity
whose
summons
was
served on the
government
official designated
by law [Sec. 2]
Answer
to
amended
complaint as a
matter of right
[Sec. 3]
Within 60
calendar
days
Within 30
calendar
days
Answer
to
amended
Within 15
complaint NOT as calendar
a matter of right days
[Sec. 3]
Answer to an
amended
counterclaim
amended crossclaim, amended
third (fourth, etc.) party complaint,
and
amended
complaint-inintervention [Sec.
3]
Answer
to
counterclaim or
cross-claim [Sec.
4]
Answer to third
(fourth, etc.) party
complaint
[Sec. 5]
Page 57 of 525
Receipt of
summons
by
such
entity
Service of
a copy of
the
amended
complaint
Notice of
the order
admitting
the
amended
complaint
Same as
answer to
amended
complaint
Same as
answer to
amended
complaint
Within 20
calendar
days
Service
Same as
answer to
the
complaint
Same as
answer to
the
complaint
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Within 15
calendar
days
Service of
the
pleading
responded
to
Within 20
calendar
days
Answer
to
(unless a
supplemental
different
complaint [Sec. 7]
period is
fixed by
the court)
Notice of
the order
admitting
the same
Reply [Sec. 6]
Note: The Rules allow for a motion to extend
time to file an answer, as long as it is for
meritorious reasons. Such may only be availed
of by the defendant once and may not exceed
30 calendar days. [Sec. 1, Rule 11]
iv. Manner of filing
How filed
The filing of pleadings and other court
submissions shall be made by:
a. Submitting personally the original to the
court;
b. Sending them by registered mail;
c. Sending them by accredited courier; or
d. Transmitting them by electronic mail or
other electronic means as may be
authorized by the Court, in places where
the court is electronically equipped. [Sec.
3, Rule 13]
Mode of
Filing
Personal
Filing
Filing
by
Registered
Mail
Filing
by
Accredited
Courier
Date of Filing
The clerk of court shall
endorse on the pleading
the date and hour of filing
The date of the mailing of
motions, pleadings, and
other court submissions,
and payments or deposits,
as shown by the post office
stamp on the envelope or
the registry receipt shall be
REMEDIAL LAW
considered as the date of
their filing.
Transmittal by
electronic mail
The date of
or
other
transmission
electronic
means
[Sec. 3, Rule 13]
electronic
v. Modes of service
To whom service made
General Rule:
Serve the copy of the pleading or the court
submission to the party himself.
Exception:
If a party has appeared by counsel, service
upon such party shall be made upon his or her
counsel or one of the counsels.
Exception to Exception:
The court orders service upon both the party
and counsel. [Sec. 2, Rule 13]
When several parties/several counsel
Where one counsel appears for several
parties, such counsel shall only be entitled to
one copy of any paper served upon him by the
opposite side.
Where several counsels appear for one
party, such party shall be entitled to only one
copy of any pleading or paper to be served
upon the lead counsel if one is designated or
upon any one of them is there no designation
of a lead counsel.
[Sec. 2, Rule 13]
Modes of Service
Pleadings, motions, orders, judgments, and
other court submissions shall be served:
1. Personally,
2. By registered mail,
3. By accredited courier,
4. By electronic mail, facsimile transmission,
or other electronic means as may be
authorized by the Court,
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•
5. By service as provided for in international
conventions to which the Philippines is a
party, and
6. Substituted service. [Sec. 5, Rule 13]
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Such must be served at the residence
at a time between 8 am to 6 pm. [Sec.
6, Rule 13]
2. Service by registered mail
Note: As to which modes of service are
preferred, refer below to the discussion on
conventional service of orders, pleadings, and
other documents.
Presumptive Service
There shall be presumptive service of a notice
to a party of a court setting:
1. Addressee is in the same judicial region
of the court where the case is pending
• if such notice appears on the records to
have been mailed at least 20 calendar
days prior to the scheduled date of
hearing
2. Addressee is from outside the judicial
region of the court where the case is
pending
• if such notice appears on the records to
have been mailed at least 30 calendar
days prior to the scheduled date of
hearing. [Sec. 10, Rule 13]
Note: Since it is provided as a mere
presumption, it may be subject to proof to the
contrary, such as when counsel adduces
evidence that notice of the court setting was
indeed not served.
1. Personal service
How personal service is made
Service by personal service shall be made by:
1. By personal delivery of a copy to the party,
counsel,
or
to
their
authorized
representative named in the appropriate
pleading or motion, or
2. By leaving it in his or her office with his or
her clerk, or with a person having charge
thereof
• If (a) no person is found in his or her
office, or (b) his or her office is not
known, or (c) he or she has no office,
then by leaving the copy at the party or
counsel's residence, if known, with a
person of sufficient age and discretion
residing therein.
How service by registered mail is made
1. Depositing the copy in the post office in a
sealed envelope,
2. The copy must be plainly addressed to the
party or counsel at his office, if known.
Otherwise, address to his residence, if
known,
3. Postage must be fully prepaid, and
4. Copy must come with instructions to the
postmaster to return the mail to the sender
after 10 calendar days if the copy remains
undelivered.
Ordinary mail – If no registry service is
available in the locality of either the sender or
addressee, service can be made through
ordinary mail. [Sec. 7, Rule 13]
3. Service by accredited courier
How service by accredited courier is done
Note: Unlike the other means of service, it
seems that there is no provision under the
Amended Rules which outlines how service via
accredited courier is done.
At most, the Amended Rules only provide that
in the case of judgements, finals orders, and
resolutions, such service must be preceded by
an ex parte motion requested by any party to
the proceedings. [Sec. 13, Rule 13]
4. Service by electronic mail,
facsimile transmission, or other
electronic means
When service by electronic means or
facsimile is allowed
Service by electronic means and facsimile shall
be made if the party concerned consents to
such modes of service. [Sec. 9, Rule 13]
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How service by electronic means or
facsimile is made
party notifies the court of any change as
aforementioned. [Sec. 11, Rule 13]
Service by electronic means
1. By sending an e-mail to the party’s or
counsel’s e-mail address, or
2. Through other electronic means of
transmission.
Note: Due to the rule providing for such
presumption, any actual change in the e-mail
addresses or facsimile numbers of the parties
will not bind the court unless the party gives
notice of the change.
Before service by electronic means can be
availed of, either the agreement of the parties
or the direction of the court is required. [Sec. 9,
Rule 13]
Service by facsimile
By sending a facsimile copy to the party or
counsel’s given facsimile number.
[Sec. 9, Rule 13]
Subject format of electronically served
documents and facsimiles
The subject of the e-mail and facsimile must
follow the prescribed format:
1. Case number, followed by
2. Case title, followed by
3. The pleading, order or document title.
• The title of each electronically-filed or
served pleading or document, and
each submission served by facsimile,
shall contain sufficient information to
enable the court to ascertain from the
title:
a. The parties filing or serving the
paper,
b. The nature of the paper,
c. The party or parties against whom
relief, if any, is sought, and
d. The nature of the relief sought.
[Sec. 12, Rule 13]
Change of electronic mail or facsimile
number
A party who changes his e-mail address or
facsimile number while the action is pending
must file, within 5 calendar days, a notice of
change of e-mail address or facsimile number
with the court, and serve notice on all other
parties. [Sec. 11, Rule 13]
5. Service as provided for
international conventions
in
An example of an international convention
which the Philippines is a party to which
likewise relates to service of court documents
would be the Convention on the Service
Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters.
6. Substituted service
When substituted service is allowed
When service cannot be made personally or by
mail because the office and place of residence
of the party or his counsel being unknown.
[Sec. 8, Rule 13]
How substituted service is made
1. Delivering the copy to the clerk of court
2. With proof of failure of both personal
service and service by mail. [Sec. 8, Rule
13]
Papers that may be served
substituted service
1. Pleadings
2. Motions
3. Notices
4. Resolutions, and
5. Other papers. [Sec. 8, Rule 13]
through
Judgments, final orders, or resolutions cannot
be served by substituted service. [1 Regalado
233, 2010 Ed.]
Service through the registered e-mail of the
party shall be presumed valid unless such
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vi. Service of judgments, final orders,
or resolutions; service of courtissued
orders
and
other
documents
Service of judgments, final orders, or
resolutions
Judgments, final orders, or resolutions shall be
served either:
1. Personally,
2. By registered mail,
3. By accredited courier, upon ex parte
motion of any party
4. By publication, when a party summoned by
publication has failed to appear in the
action. Expenses of publication must be
borne by the prevailing party. [Sec. 13,
Rule 13]
Note: Curiously, both Sec. 5, Rule 13 and Sec.
13, Rule 13 mandate different methods of
service when it comes specifically to
“judgements” and “final orders”. It is
submitted that the enumeration in Sec. 13,
Rule 13 should govern when it comes to these
two court documents, as such rule specifically
provides for the method of service of
“judgements” and “final orders”. Sec. 5, Rule
13 on the other hand, covers the method of
service for a more general list of court
documents. Lex specialis derogat legi generali.
Specific provisions of law govern over general
provisions.
Service of court-issued orders and other
documents
The court may electronically serve orders and
other documents to all the parties in the case
which shall have the same effect and validity
as provided herein.
A paper copy of the order or other document
electronically served shall be retained and
attached to the record of the case.
[Sec. 18, Rule 13]
Note: It is submitted that despite Sec. 18, Rule
13 allowing for service of orders and other
documents electronically, such mode of
service may be done only in addition to the
four modes of service in the case of
judgements, final orders, and resolutions as
dictated by Sec. 13, Rule 13. This is so
because Sec. 13, Rule 13 uses the word “shall”
in enumerating the modes of service applicable
to such documents. Electronic service
cannot replace these modes of service, and
may only supplement the same. It appears,
therefore, that the rationale for allowing
electronic service in these cases is to ensure
receipt by the parties to the case.
vii. Conventional service or filing of
orders, pleadings, and other
documents
General Rule: The following should not be
served or filed electronically, and shall be filed
or served personally or by registered mail:
1. Initiatory pleadings and initial responsive
pleadings (answer);
2. Subpoena, protection orders, and writs;
3. Appendices and exhibits to motions, or
other documents that are not readily
amenable to electronic scanning; and
4. Sealed and confidential documents or
records.
Exception: When the court gives express
permission for them to be filed electronically.
[Sec. 14, Rule 13]
7. When
service
complete
Mode of
Service
Personal
Service
Service
by
ordinary mail
Service
by
registered
mail
Page 61 of 525
is
deemed
Completeness of Service
Upon actual delivery.
Upon the expiration of the
10 calendar days after
mailing, unless the court
otherwise provides.
Upon the actual receipt by
the addressee, or
after 5 calendar days from
the date he or she received
the first notice of the
U.P. LAW BOC
Service
by
accredited
courier
Electronic
Service
Service
by
facsimile
transmission
Substituted
service
REMEDIAL LAW
CIVIL PROCEDURE
postmaster, whichever is
earlier.
Upon actual receipt by the
addressee or
after at least 2 attempts to
deliver or
upon the expiration of 5
calendar days after the first
attempt
to
deliver,
whichever is earlier.
At the time of the electronic
transmission
of
the
document or
at the time that the
electronic notification of
service of the document is
sent.
Note: It is not effective or
complete if the party
serving learns that it did not
reach the person to be
served.
Upon receipt by the other
party as indicated in the
facsimile printout.
At the time of delivery of the
copy to the clerk of court.
[Sec. 8, Rule 13]
Mode
Personal
Filing
Filing
by
registered
mail
Filing
by
accredited
courier
[Sec. 15, Rule 13]
Electronic
Filing
8. Proof of filing and service
Proof of Filing
General rule: The filing of a pleading or any
other court submission shall be proved by its
existence in the record of the case.
Exception: If the pleading or any other court
document is not in the record, but is claimed to
have been filed by the following modes, proof
shall be:
Filing by other
authorized
electronic
means
[Sec. 16, Rule 13]
Page 62 of 525
Proof of Filing
By the written or stamped
acknowledgment of its filing
by the clerk of court on a
copy of the pleading or
court submission.
By the registry receipt and
the affidavit of the person
who mailed it containing a
full statement of the date
and place of deposit of the
mail in the post office in a
sealed
envelope
addressed to the court, with
postage fully prepaid, and
with the instructions to the
postmaster to return the
mail to the sender after 10
calendar days if not
delivered.
By an affidavit of service of
the person who brought the
pleading or other document
to the service provider, and
the courier’s official receipt
and document tracking
number.
By an affidavit of electronic
filing of the filing party, and
a paper copy of the
pleading or other document
transmitted, or
A written or stamped
acknowledgment of its filing
by the clerk of court.
By an affidavit of electronic
filing of the filing party, and
a copy of the electronic
acknowledgment of its filing
by the court.
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Proof of Service
Mode
CIVIL PROCEDURE
Proof of Service
A written admission of the
party served, or
The official return of the
server, or
Personal
Service
The affidavit of the party
serving,
containing
a
statement of the date,
place, and manner of
service
Service
by
ordinary mail
Note:
This
mode
of
service may
only
be
availed of if no
registry
service
is
available
in
the locality as
per Sec. 7,
Rule 13.
Service
by
registered
mail
Service
by
accredited
courier
Service
electronic
mail,
by
An affidavit of the person
mailing stating the facts
showing compliance with
Sec. 7, Rule 13.
An affidavit of the person
mailing stating the facts
showing compliance with
Sec. 7, Rule 13 and the
registry receipt issued by
the mailing office.
An affidavit of service
executed by the person
who brought the pleading
or paper to the service
provider, and the courier’s
official receipt or document
tracking number.
An affidavit of service
executed by the person
who sent the e-mail,
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facsimile, or facsimile,
or
other
other
electronic
transmission,
authorized
and printed proof of
electronic
transmittal.
means
of
transmission
[Sec. 17, Rule 13]
h. Amendment
How to amend pleadings
1. Adding an allegation,
2. Adding the name of any party,
3. Striking out an allegation,
4. Striking out the name of any party,
5. Correcting a mistake in the name of a party,
or
6. Correcting a mistaken or inadequate
allegation or description in any other
respect. [Sec. 1, Rule 10]
Purpose of Amendments to a Pleading
The courts should be liberal in allowing
amendments to pleadings to avoid a multiplicity
of suits and in order that the real controversies
between the parties are presented, their rights
determined, and the case decided on the
merits without unnecessary delay. [Tiu v. Phil.
Bank of Communication, G.R. No. 151932
(2009)]
How to file 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. [Sec. 7, Rule
10]
No amendment necessary to conform to or
authorize presentation of evidence
When issues are not raised in the pleadings but
are tried with the consent of the parties, they
shall be treated as if they had been raised in
the pleading. No amendment of such
pleadings deemed amended is necessary to
cause them to conform to the evidence.
[Sec. 5, Rule 10]
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Note: This is a new rule introduced by the
Amended Rules. The old rule provided that in
a situation where issues not raised in the
pleadings were tried with the consent of the
parties, the pleadings should be subsequently
amended on motion of a party to conform to
evidence.
i. Amendment as a matter of right
A party may amend his pleading once as a
matter of right
a. At any time before a responsive pleading is
served, or
b. In the case of a reply, at any time within 10
calendar days after it is served
[Sec. 2, Rule 10]
A motion to dismiss is not a responsive
pleading and does not preclude the exercise of
the plaintiff’s right to amend his complaint.
[Remington Industrial Sales v. CA, G.R. No.
133657 (2002)]
ii. Amendments by leave of court
Substantial amendments may be made only
upon leave of court [Sec. 3, Rule 10]
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. [Swagman v.
CA, G.R. No. 161135 (2005)]
iii. Formal amendment
When proper
a. Defect in the designation of the parties, or
b. Other clearly clerical or typographical
errors
[Sec. 4, Rule 10]
How made
Such defects or errors are summarily
corrected by the court, at any stage of the
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse
party.
[Sec. 4, Rule 10]
iv. Effect of amended pleading
1. Supersedes the pleading that it amends,
2. Admissions in the superseded pleadings
may be offered in evidence against the
pleader
Requisites
a. Motion for leave of court, accompanied by
the amended pleading sought to be
admitted; [Sec. 10, Rule 15]
b. Notice is given to the adverse party; and
c. Parties are given the opportunity to be
heard. [Sec. 3, Rule 10]
When leave of court to substantially amend
a pleading shall be refused
If it appears to the court that the motion was
made:
1. With intent to delay;
2. With intent to confer jurisdiction on the
court; or
3. The pleading stated no cause of action
from the beginning. [Sec. 3, Rule 10]
Note: This rule merely integrates into the Rules
of Court the landmark case of Swagman Hotels
v. Court of Appeals which provided that a
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Note: The amended rules changed the
word “received” into “offered”, meaning
that the admissions in the superseded
pleadings may not necessarily be received
in evidence. They are considered
extrajudicial admissions.
3. Claims or defenses alleged in the
superseded pleading but not incorporated
or reiterated in the amended pleading are
deemed waived. [Sec. 8, Rule 10]
v. Supplemental pleadings
When proper
A supplemental pleading is filed to set forth
transactions, occurrences or events which
have happened since the date of the pleading
sought to be supplemented. [Sec. 6, Rule 10]
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How made
Upon motion of a party, the court may, upon
reasonable notice and upon such terms as are
just, permit him or her to serve a supplemental
pleading
Note: The admission or non-admission of a
supplemental pleading is not a matter of right
but is discretionary on the court. Note the
language of Sec. 6, Rule 10: “may”.
The adverse party may plead thereto within
ten (10) calendar days from notice of the order
admitting the supplemental pleading.
[Sec. 6, Rule 10]
Purpose
To bring into the records new facts which will
enlarge or change the kind of relief to which the
plaintiff is entitled. [Ada v. Baylon, G.R. No.
182435 (2012)]
Amended v. Supplemental Pleadings
Supplemental
Amended Pleadings
Pleadings
Refer to transactions,
occurrences
or
Refer to facts existing
events which have
at the time of the
happened since the
commencement
of
date of the pleading
the action
sought
to
be
supplemented
Either as a matter of
right or by leave of
court
Always by leave of
court
Supersedes
the
pleading
that
it
amends
Merely supplements,
and exists side-byside with the original
[1 Riano 366, 2011
Ed.]
A new copy of the
entire
pleading,
incorporating
the
amendments, which
shall be indicated by
appropriate
marks,
shall be filed
No such requirement
exists
7. Summons
Definition
The writ by which the defendant is notified of
the action brought against him [Licaros v.
Licaros, G.R. No. 150656 (2003)]
By whom issued
Clerk of court upon directive of the court. [Sec.
1, Rule 14]
Leave of court in case service requires prior
leave
Any application under this rule for leave to
effect service in any manner for which leave of
court is necessary shall be made by:
a. A motion in writing,
b. Supported by affidavit of the plaintiff or
some person on his behalf setting forth the
grounds for the application. [Sec. 19, Rule
14]
a. Nature
and
summons
purpose
of
i. In relation to actions in personam,
in rem, and quasi in rem
1. Action in personam
Purpose of summons
a. To acquire jurisdiction over the person of
the defendant in a civil case
b. To give notice to the defendant that an
action has been commenced against him.
[1 Riano 376, 2011 Ed.]
Where the action is in personam, that is, one
brought against a person on the basis of his
personal liability, jurisdiction over the person of
the defendant is necessary for the court to
validly try and decide the case. [Velayo-Fong v.
Velayo, G.R. No. 155488 (2006)]
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2. Action in rem and quasi in rem
Purpose of summons in actions in rem and
quasi in rem
a. Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process
b. Jurisdiction over the defendant is not
required
c. The court acquires jurisdiction over an
action as long as it acquires jurisdiction
over the res that is the subject matter of the
action. [Macasaet v. Co, Jr., G.R. No.
156759 (2013)]
iii. Contents of summons
Contents
1. Summons shall be
a. Directed to the defendant, and
b. Signed by the clerk of court under seal
2. Summons shall contain
a. The name of the court, and the names
of the parties to the action;
b. When authorized by the court upon ex
parte motion, an authorization for the
plaintiff to serve summons to the
defendant;
Note: The plaintiff may serve summons
together with the sheriff, only when the
sheriff, his deputy or proper court
officer fails to serve summons, or if the
summons is to be served outside the
judicial region of the court. In the latter
case, there would be no need for the
sheriff, his deputy, or the proper court
officer to have first failed to serve the
summons before the plaintiff may be
authorized by court to serve summons.
[Sec. 3, Rule 14]
ii. When summons are issued
Summons shall be issued:
1. Within 5 calendar days from receipt of the
initiatory pleading, and
2. Upon proof of payment of the requisite
legal fees
• Note: The old rules merely required
payment of the requisite legal fees. The
new rules now require proof of such
payment to be submitted with the
initiatory pleading.
Summons shall not be issued, and the case
shall be dismissed if the complaint on its face
is dismissible under Sec. 1, Rule 9. Such
provides for the non-waivable grounds for
dismissal of a complaint, to wit:
1. The court has no jurisdiction over the
subject matter
2. Litis pendentia
3. Res judicata
4. The action is barred by the statute of
limitations. [Sec. 1, Rule 14]
REMEDIAL LAW
c. A direction that the defendant answer
within the time fixed by the ROC; and
d. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for
3. The following shall be attached to the
original and each copy of the summons
a. A copy of the complaint, and
b. An order for appointment of guardian
ad litem, if any. [Sec. 2, Rule 14]
iv. Duty of counsel
Note: The rule directing the court not to issue
summons in case any of the grounds are
present is similar to the Rules on Small Claims
and Summary Procedure. However, the
grounds under the amended provision are
limited to the non-waivable grounds in Sec. 1,
Rule 9.
When counsel may be deputized by the
court to serve summons on his client
1. Where summons is improperly served, and
2. A lawyer makes a special appearance on
behalf of the defendant to question the
validity of service of summons. [Sec. 13,
Rule 14]
Note: Due to this new provision in the rules,
when the defendant claims lack of jurisdiction
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over his person by special appearance, the
court will no longer dismiss the case but
instead will deputize the counsel to serve
summons on his client. This is also in line
with the amendment removing lack of
jurisdiction over the person of the defendant as
a ground for an allowable motion to dismiss. It
remains, however, as an affirmative defense
that may be raised in the answer.
v. Return
When summons shall be served
The server shall complete its service within 30
calendar days from issuance of summons by
the clerk of court and receipt of such. [Sec. 20,
Rule 14]
Return of summons
Within 5 calendar days from service of
summons, the server shall:
1. File with the court a copy of the return, and
2. Serve a copy of the return to the plaintiff’s
counsel personally, by registered mail, or
by electronic means authorized by the
rules. [Sec. 20, Rule 14]
Contents of the return when substituted
service was availed of
1. The impossibility of prompt personal
service within 30 calendar days from issue
and receipt of summons;
2. The date and time of the 3 attempts on at
least 2 different dates to cause personal
service and the details of the inquiries
made to locate the defendant; and
3. Information on the person to whom the
summons was served:
a. The name of the person at least 18
years of age and of sufficient discretion
residing thereat,
b. The name of the competent person in
charge of the defendant’s office or
regular place of business, or
c. The name of the officer of the
homeowners’
association
or
condominium corporation or its chief
security officer in charge of the
community or building where the
defendant may be found. [Sec. 20,
Rule 14]
REMEDIAL LAW
Note: The enumeration of persons to whom
summons was made is the enumeration of
persons upon whom substituted service may
be made under Sec. 6, Rule 14.
b. 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 the lack of jurisdiction over
the person of the defendant shall be deemed a
voluntary appearance. [Sec. 23, Rule 14]
Note: It is submitted that despite Sec. 23, Rule
14 mentioning lack of jurisdiction over the
person as a ground to be included in a motion
to dismiss, such still remains to be a prohibited
motion under Sec. 12, Rule 15, as the only
allowable grounds for a motion to dismiss are
lack of jurisdiction over the subject matter, litis
pendencia, res judicata, and prescription. A
motion to dismiss on the basis of lack of
jurisdiction over the defendant should be
dismissed outright. [Sec. 12, Rule 15]
It is also submitted that the allegation of any of
the old grounds for a motion to dismiss under
Rule 16 of the old rules of Civil Procedure
would be tantamount to a voluntary
appearance by the defendant.
c. Who may serve summons
Who may serve summons
1. The sheriff,
2. His or her deputy,
3. Other proper court officer, or
4. The plaintiff together with the sheriff. [Sec.
3, Rule 14]
The enumeration of persons who may validly
serve summons is exclusive. [1 Regalado
245, 2010 Ed.]
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Rules for service of summons by plaintiff
The court shall authorize the plaintiff to serve
summons together with the sheriff upon ex
parte motion in 2 instances:
1. In case of failure of service of summons by
the aforementioned persons, or
2. In cases where summons is to be served
outside the judicial region of the court
where the case is pending.
- Note: There is no need for prior failure
to serve in this case before the plaintiff
may be authorized by the court to
serve.
If the plaintiff is a juridical entity
1. It shall notify the court, in writing, name its
authorized representative, and
2. A board resolution or secretary’s certificate
must be attached stating that such
representative is duly authorized to serve
the summons on behalf of the plaintiff.
If the plaintiff misrepresents that the
defendant was served summons, and it is
later proved that no summons was served:
a. The case shall be dismissed with
prejudice,
b. The proceedings shall be nullified, and
c. The plaintiff shall be meted appropriate
sanctions.
If summons is returned without being
served on any or all the defendants,
The court shall order the plaintiff to cause the
service of summons by other means available
under the Rules.
• Failure to comply with the order shall lead
to dismissal without prejudice. [Sec. 3,
Rule 14]
d. Personal service
How done
1. By handing a copy to the defendant in
person and informing the defendant that he
or she is being served, or
2. If he or she refuses to receive and sign for
it, by leaving the summons within the view
and in the presence of the defendant. [Sec.
5, Rule 14]
REMEDIAL LAW
Note: The old provision provides for
“tendering” as a means of service whenever
handing a copy to the defendant in person is
not possible. The amendment merely explains
what tendering means and how it is done.
e. Substituted service
When availed of
Substituted service may be availed of when for
justifiable reasons, the defendant cannot be
served personally after at least 3 attempts on 2
different dates. [This reflects the ruling in the
case of Manotoc v. CA, 499 SCRA 21 (2006)]
Note: As per Sec. 20, Rule 14, the attempts
must be done within the 30 calendar day period
provided for the completion of service of
summons.
How done [Sec. 6, Rule 14]
1. By leaving copies of the summons at the
defendant's residence to a person at
least eighteen (18) years of age and of
sufficient discretion residing therein;
• To be of sufficient discretion, a
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. [Prudential Bank v. Magdamit,
G.R. No. 183795 (2014)]
2. By leaving copies of the summons at the
defendant's office or regular place of
business with some competent person in
charge thereof.
• A competent person includes, but is not
limited to, one who customarily
receives correspondences for the
defendant;
• Must be the one managing the office or
business of the 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.
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[Prudential Bank v. Magdamit, G.R.
No. 183795 (2014)]
3. By leaving copies of the summons, if
refused entry upon making his or her
authority and purpose known, with any of
the officers of the homeowners' association
or condominium corporation, or its chief
security officer in charge of the community
or the building where the defendant may
be found [This reflects the ruling in the
case of Robinson v. Miralles, G.R. No.
163584 (2006)]; and
4. By sending an electronic mail to the
defendant's electronic mail address, if
allowed by the court. [Sec. 6, Rule 14]
Residence, defined
The place where the person named in the
summons is living at the time of when the
service is made, even though he may be
temporarily out of the country at that time
[Venturanza v. CA, G.R. No. 77760 (1987)]
The residence of a person is his personal,
actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency [Boleyley v. Villanueva, G.R. No.
128734 (1999)]
ii. Service
temporarily
Philippines
upon
residents
outside
the
Service may, by leave of court, be also effected
out of the Philippines as by the means provided
under extraterritorial service. [Sec. 18, Rule 14
in re Sec. 17]
Note: The section referred to is that on
extraterritorial service of summons.
g. Extraterritorial service
When allowed
1. When the defendant does not reside and is
not found in the Philippines, and
2. The action
a. Affects the personal status of the
plaintiff or
b. Relates to, or the subject of which is,
property within the Philippines, in which
the defendant has or claims a lien or
interest, actual or contingent, or
c. In which the relief demanded consists,
wholly or in part, in excluding the
defendant from any interest therein, or
d. The property of the defendant has
been attached within the Philippines.
[Sec. 17, Rule 14]
f. Constructive service
i. Service upon a defendant where
his identity is unknown or where
his whereabouts are unknown
Service is made by publication
a. With leave of court,
• The order shall specify a reasonable
time not less than 60 calendar days
within which the defendant must
answer.
b. Effected within 90 calendar days from
commencement of the action,
c. In a newspaper of general circulation and
in such places and for such time as the
court may order.
Note: The defendant’s whereabouts must be
ascertained with diligent inquiry.
[Sec. 16, Rule 14]
How summons served
By leave of court, be effected outside the
Philippines
a. By personal service;
b. By means provided for in international
conventions to which the Philippines is a
party;
c. By publication in a newspaper of general
circulation in such places and for such time
as court may order; or
• a copy of the summons and order of the
court shall be sent by registered mail to
the last known address of the
defendant
d. In any other manner the court may deem
sufficient.
Any order granting such leave shall specify a
reasonable time within which the defendant
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must answer, which shall not be less than 60
calendar days after notice. [Sec. 17, Rule 14]
h. Service upon prisoners and
minors; upon spouses
Upon prisoners
Where 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.
• Such officer is deemed a special sheriff
• He or she shall file a return within 5
calendar days from service of summons.
[Sec. 8, Rule 14]
Upon minors or incompetent persons
Where the defendant is a minor, insane, or
incompetent person, service of summons shall
be made:
a. Upon him or her personally, and
b. On his or her legal guardian
i.
If none, on his or her guardian ad litem
whose appointment shall be applied for
by the plaintiff
ii.
In the case of a minor, on his or her
parent or guardian. [Sec. 10, Rule 14]
Upon spouses
When spouses are sued jointly, service of
summons should be made to each spouse
individually. [Sec. 11, Rule 14]
i. Service upon domestic or
foreign private juridical entities
Upon an entity without juridical personality
a. When applicable
1. Persons are associated in an entity
without juridical personality, and
2. They are sued under the name by
which they are generally or commonly
known
b. Service may be effected upon all the
defendants by serving upon
1. Any one of them, or
2. The person in charge of the office or
place of business maintained in such
name.
REMEDIAL LAW
Note: Such service shall not bind any person
whose connection with the entity has, upon due
notice, been severed before the action was
filed. [Sec. 7, Rule 14]
Upon domestic private juridical entity
Service is effected upon:
a. The president,
b. Managing partner,
c. General manager,
d. Corporate secretary,
e. Treasurer, or
f. In- house counsel.
Service may be effected wherever they may be
found, or in their absence or unavailability, on
their secretaries. [Sec. 12, Rule 14]
Note: This is a new provision that seeks to
address the issue of plaintiffs under the old
rules frequently having to ask for alias
summons that would include new addresses of
the officers. This is in line with the amended
rule that alias summons will only be issued for
lost summons.
If service cannot be made on the enumerated
officers or their secretaries, it shall be made
upon the person who customarily received
the correspondence for the defendant at its
principal office. [Sec. 12, Rule 14]
Note: A person who customarily receives
correspondence is also a person to whom
substituted service of summons may be made
after at least 3 attempts on 2 different dates.
[Sec. 6, Rule 14] However, with such provision
under this section, it appears that the
requirement of 3 attempts on 2 different dates
does not apply in this instance. As soon as
service cannot be made on the officers or their
secretaries, service can already be made on
the
person
customarily
receiving
correspondence.
Domestic juridical entity under receivership
or liquidation
Service of summons shall be made on the
receiver or liquidator. [Sec. 12, Rule 14]
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Note: In case of refusal by any of the persons
mentioned to receive summons for
domestic juridical entities despite at least 3
attempts on 2 different dates, service may be
made electronically, if allowed by the court.
[Sec. 12, Rule 14]
Executive head or
Province,
City,
such other officer/s
Municipality, or like
as the law or the
public corporations
court may direct.
[Sec. 15, Rule 14]
j. Proof of service
Upon foreign private juridical entities
Juridical entity registered/ has a resident
agent and is doing business in the
Philippines
Service may be made on:
1. Its
resident
agent
designated
in
accordance with law,
2. If there is no such agent, on the
government official designate by law to that
effect, or
3. On any of its officers, agents, directors, or
trustees within the Philippines. [Sec. 14,
Rule 14]
Juridical entity not registered/ has no
resident agent but has transacted or is
doing business in the Philippines
Service may, with leave of court, be effected
outside the Philippines through:
1. Personal service coursed through the
appropriate court in the foreign country with
the assistance of the DFA;
2. Publication once in a newspaper of general
circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court order
by registered mail at the last known
address of the defendant;
3. Facsimile;
4. Electronic means with the prescribed proof
of service; or
5. Other means as the court, in its discretion,
may direct. [Sec. 14, Rule 14]
Service upon public corporations
To Whom
Defendant
Summons Served
The Republic of the
Solicitor General
Philippines
REMEDIAL LAW
Proof of service shall
a. Be made in writing by the server and
b. Set forth the manner, place, and date of
service; any papers which have been
served with the process, and the name of
the person who received the papers served
c. Be sworn to when made by a person, other
than the sheriff or his or her deputy. [Sec.
21, Rule 14]
Summons made by electronic mail
Proof of service shall be:
a. A print out of said e-mail,
b. Copy of the summons as served, and
c. The affidavit of the person mailing. [Sec.
21, Rule 14]
Summons made by publication
Proof of service shall be:
a. The affidavit of the publisher, business or
advertising manager,
b. Copy of the publication, and
c. An affidavit showing the deposit of a copy
of the summons and order for publication in
the post office, postage prepaid, directed to
the defendant by registered mail to his or
her last known address [Sec. 22, Rule 14]
Note: The amended rules changed printer to
publisher and removed the foreman or principal
clerk from those who may execute the affidavit.
Effect of defect of proof of service
a. Where the sheriff's return is defective, the
presumption
of
regularity
in
the
performance of official functions will not lie.
[Sps. Venturanza v. CA, G.R. No. 77760
(1987)].
b. Defective return is insufficient and
incompetent to prove that summons was
indeed served. [Santiago Syjuco, Inc. v.
Castro, G.R. No. 70403 (1989)].
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c. Party alleging valid summons will now
prove that summons was indeed served.
[Heirs of Manguiat v. CA, G.R. No. 150768
(2008)].
d. If there are no valid summons, the court did
not acquire jurisdiction which renders null
and void all subsequent proceedings and
issuances. [Santiago Syjuco, Inc. v.
Castro, G.R. No. 70403 (1989)].
8. MOTIONS
a. Motions in General
i. Definition of a Motion
A motion is any application for relief other
than by a pleading. [Sec. 1, Rule 15]
ii. Motions vs. Pleadings
Motion
Pleading
Contains allegations Contains allegations
of facts [Sec. 3, Rule of the ultimate facts
15]
[Sec. 1, Rule 8]
Prays for a relief [Sec. 1, Rule 15]
Generally in writing,
except when made
in open court or
during the course of
a hearing or trial.
[Sec. 2, Rule 15]
Always in writing
[Sec. 1, Rule 6]
c. With supporting affidavits and other
papers if
i.
Required by the ROC, or
ii.
Necessary to prove facts alleged
therein. [Sec. 3, Rule 15]
Form
General rule: In writing
The rules applicable to pleadings shall apply to
written motions so far as concerns caption,
designation, signature, and other matters of
form. [Sec. 11, Rule 15]
Exceptions: Oral
Motions made in:
1. Open court or
2. The course of a hearing or trial
Note: Such motions should be immediately
resolved in open court, after the adverse party
is given the opportunity to argue his or her
opposition. However, when the motion is based
on facts not appearing on record, the court may
conduct a hearing to:
1. Hear the matter on affidavits or
depositions presented by the parties, or
2. The court may direct that the matter be
heard wholly or partly on oral testimony
or depositions. [Sec. 2, Rule 15]
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. [Sec. 10, Rule
15]
iv. Litigious
and
Non-litigious
Motions; When Notice Of Hearing
Necessary
iii. Contents and Form of Motions
Contents
a. Relief sought to be obtained,
b. Grounds upon which it is based, and
REMEDIAL LAW
What are Litigious Motions
One which requires the parties to be heard
before a ruling on the motion is made by the
court. [1 Riano 368, 2011 Ed.]
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Litigious motions include:
a. Motion for bill of particulars;
b. Motion to dismiss;
4. Electronic means. [Sec. 5(b), Rule 15]
Note: Since a motion to dismiss is now
classified as a litigious motion, such motion
should be resolved within 15 calendar days
from the filing of the opposition to the motion to
dismiss. [Sec. 5(c), Rule 15] Therefore, this
clearly repeals Secs. 2 and 3, Rule 16 of the
old Rules of Court on hearing and resolution of
a motion to dismiss.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
Motion for new trial;
Motion for reconsideration;
Motion for execution pending appeal;
Motion to amend after a responsive
pleading has been filed;
Motion to cancel statutory lien;
Motion for an order to break in or for a writ
of demolition;
Motion for intervention;
Motion for judgment on the pleadings;
Motion for summary judgment;
Demurrer to evidence;
Motion to declare defendant in default; and
Other similar motions. [Sec. 5(a), Rule 15]
The period to file an opposition would be 5
calendar days from the receipt of the litigious
motion. The court shall then resolve the motion
within 15 calendar days from receipt of the
opposition or upon expiration of the period to
file such opposition.
Note: No other submissions, other than the
opposition, shall be considered by the court in
resolving the motion. [Sec. 5(c), Rule 15]
Service of Litigious Motions
Litigious motions shall be served by:
1. Personal service;
2. Accredited private courier;
3. Registered mail; or
REMEDIAL LAW
Note: Remember that electronic means of
service may only be availed of with consent of
the other party or with authorization of the
court. [Sec. 9, Rule 13]
No written motion shall be acted upon by the
court without proof of service thereof pursuant
to Section 5(b). [Sec. 7, Rule 15]
Hearing on Litigious Motions
The court may call for a hearing if deemed
necessary for the motion’s resolution and send
notice to all parties concerned, specifying the
time and date of the hearing. [Sec. 6, Rule 15]
Note that the allowance for hearing only
applies to litigious motions, since non-litigious
motions cannot be set for hearing. [Sec. 4, Rule
15]
Motion Day
General Rule: Where the court decides to
conduct a hearing on a litigious motion, it shall
be set on a Friday.
Exception: When a motion requires immediate
action. [Sec. 8, Rule 15]
What are Non-Litigious motions
Motions which the court may act upon without
prejudicing the rights of adverse parties. Such
motions shall not be set for hearing and the
court shall resolve the motion within 5
calendar days from receipt of the motion.
Non-litigious motions include:
a. Motion for issuance of an alias summons;
b. Motion for extension to file an answer;
c. Motion for postponement;
d. Motion for the issuance of a writ of
execution;
e. Motion for the issuance of an alias writ of
execution
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f.
Motion for the issuance of a writ of
possession;
g. Motion for the issuance of an order
directing the sheriff to execute the final
certificate of sale; and
h. Other similar motions. [Sec. 4, Rule 15]
v. Omnibus Motion Rule
General rule: A motion attacking a pleading,
order, judgment, or proceeding shall include all
objections then available. All objections not
included in the motion are deemed waived
[Sec. 9, Rule 15]
Purpose: To require the movant to raise all
available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided. [Manacop v. Court
of Appeals, G.R. No. 104875 (1992)]
Exceptions: Non-waivable grounds under
Sec. 1, Rule 9, namely:
a. Lack of jurisdiction over subject matter
b. Litis pendentia
c. Res judicata
d. Prescription [Sec. 9, Rule 15]
REMEDIAL LAW
motion to dismiss. The grounds, however, are
limited only to lack of jurisdiction over the
subject matter, litis pendentia, res judicata, and
prescription. [Sec. 12, Rule 15] Notably, the
Amended Rules empower the court to dismiss
a case motu proprio if the aforementioned nonwaivable grounds are apparent on the face of
the complaint. [Sec. 1, Rule 14]
The other grounds for a motion to dismiss
under Rule 16 of the old Rules (i.e. lack of
jurisdiction over the person, improper venue,
lack of capacity to sue, payment/release,
unenforceability under the statute of frauds,
failure to comply with condition precedent) can
now only be raised as affirmative defenses.
[Sec. 12, Rule 8, citing Sec. 5(b), Rule 6]
When a Motion to Dismiss can be Filed
Under the old Rules, a motion to dismiss
should be filed within the time for filing an
answer to the complaint. [Sec. 1, Rule 16, 1997
Rules of Civil Procedure] If a motion to dismiss
was denied, the old Rules provided that the
movant may be allowed to file an answer within
the balance of the period to file an answer, but
not less than 5 days in any event. [Sec. 4, Rule
16, 1997 Rules of Civil Procedure]
vi. Prohibited Motions
The following motions shall not be allowed:
1. Motion to dismiss except on the following
grounds:
• Lack of jurisdiction over the subject
matter,
• Litis pendentia, or
• That the action is barred by res judicata
or the statute of limitations. [Sec. 12,
Rule 15]
However, with the repeal of Rule 16 under the
Amended Rules, it seems that the Rules do not
provide specifically when a motion to dismiss
can be filed. It is therefore submitted that it is
unnecessary for the rules to provide a period
for filing a motion to dismiss, since the grounds
under Sec. 1, Rule 9 are non-waivable. Thus,
a motion to dismiss can be filed at any time
during the proceedings, subject to the
exception of estoppel by laches provided for in
Tijam v. Sibonghanoy [23 SCRA 29 (1968)].
Motion to Dismiss
The Amended Rules of Court have deleted
Rule 16 of the old Rules of Court, which
formerly dealt with motions to dismiss. Despite
this, the Amended Rules do allow the filing of a
Remedies from the Denial of a Motion to
Dismiss
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Recall that affirmative defenses, if denied,
cannot be the subject of a motion for
reconsideration, or petition for certiorari,
prohibition, or mandamus. [Sec. 12, Rule 8]
However, if the non-waivable grounds under
Sec. 1, Rule 9 are raised not as affirmative
defenses, but in a motion to dismiss, it is
submitted that the movant may still file a
motion for reconsideration or a petition for
certiorari, mandamus, or prohibition against
the order of denial of the motion to dismiss.
This is because there is no prohibition against
its filing, as opposed to if the ground is set forth
as an affirmative defense in the answer and the
affirmative defense is denied.
Note: The remedy of a petition for certiorari
under Rule 65 is available only when the denial
of the motion to dismiss is tainted with grave
abuse of discretion. Generally, the proper
remedy against the denial of a motion to
dismiss would be going through the usual trial
process, and later, filing a timely appeal
against an adverse judgement. [1 Riano 412,
2016 Bantam Ed.]
2. Motion to hear affirmative defenses;
Note: Such motion is prohibited since under the
Amended Rules, the court is required to act on
the affirmative defenses set out in the answer
within 30 calendar days if the affirmative
defense is among those listed in Sec. 12, Rule
8. The court is also allowed to avail of a
summary hearing within 15 calendar days from
the filing of the answer, and is thereafter
mandated to resolve the affirmative defense
within 30 calendar days from the termination of
the summary hearing if the affirmative
defenses are those set forth in the first
paragraph of Sec. 5(b), Rule 6. [Sec. 12, Rule
8]
REMEDIAL LAW
3. Motion for reconsideration of the
court’s action on affirmative defenses;
Note: The denial of an affirmative defense
shall not be the subject of a motion for
reconsideration or a petition for certiorari,
prohibition, or mandamus. [Sec. 12, Rule 8]
However, it is not clear from the amended rules
whether the court’s action of approving an
affirmative defense cannot be the subject to a
motion for reconsideration, since Sec. 12(c),
Rule 15 merely provides that a motion for
reconsideration of the court’s action on an
affirmative defense is a prohibited pleading. It
does not distinguish whether between the
court’s act of either denying or approving the
affirmative defense.
4. Motion to suspend proceedings without
a TRO or injunction issued by a higher
court;
Note: The principle of judicial courtesy justifies
the suspension of proceedings before the
lower courts even without an injunctive writ or
order from the higher court. However, this
remains an exception and may be applied only
if there is a strong probability that the issues
before the higher court would be rendered
moot and moribund as a result of the
continuation of the proceedings in the lower
court. [Trajano v. Uniwide Sales Warehouse
Club, G.R. No. 190253, (2014)]
5. Motion for extension of time to file
pleadings, affidavits, or any other
papers, except a motion for extension to
file an answer as provided by Sec. 11,
Rule 11;
Any pleading may still be filed out of time
without seeking for motion for extension of
time, and it will depend on the court whether it
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REMEDIAL LAW
will be admitted. The Rules authorizes the
court, in its discretion, to accept a pleading,
although filed late. [Sec. 11, Rule 11]
with sufficient definiteness or particularity to
enable him properly to prepare his responsive
pleading. [Sec. 1, Rule 12]
6. Motion for postponement intended for
delay, except if it is based on:
• Acts of god,
• Force majeure, or
• Physical inability of the witness to
appear and testify. [Sec. 12, Rule 15]
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 v. Galeon, G.R. No. L30380 (1973)]
Allowed motions for postponement
If the motion for postponement is granted, the
presentation of evidence by the moving party
must still be terminated on the dates previously
agreed upon. [Sec. 12, Rule 15]
i. Purpose and When Applied For
Purpose: To enable the movant to prepare his
or her responsive pleading. [Sec. 1, Rule 12].
Note: The dates previously agreed upon refer
to those set forth in the schedule of trial as
required under Sec. 1, Rule 30.
It is not to enable the movant to prepare for
trial. When this is the purpose, the appropriate
remedy is to avail of Discovery Procedures
under Rules 23 to 29 [1 Riano 419, 2011 Ed.]
The motion for postponement, whether written
or oral, shall be accompanied by the original
official receipt from the clerk of court
evidencing payment of the postponement fee.
When applied for
1. Before responding to a pleading.
2. If the pleading is a reply, within 10 calendar
days from service thereof. [Sec. 1, Rule 12]
Such receipt evidencing payment of the fee
shall be submitted at the time of the filing of the
motion or not later than the next hearing date.
The clerk shall not accept the motion unless
accompanied by said receipt. [Sec. 12, Rule
15]
Contents
The motion shall point out
1. The defects complained of,
2. The paragraph wherein they are contained,
and
3. The details desired. [Sec. 1, Rule 12]
Note: Sec. 3, Rule 30 allows postponement of
trial due to illness of party or counsel, provided
that their presence is indispensable and that
the character of illness is such as to render the
non-attendance excusable.
The only question to be resolved in such
motion is whether the allegations in the
complaint are averred with sufficient
definiteness or particularity to enable the
movant to properly prepare his responsive
pleading and to prepare for trial. [Tantuico, Jr.
v. Republic, G.R. No. 89114 (1991)]
b. Motions for Bill of Particulars
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
What cannot be done in a bill of particulars
a. To supply material allegations necessary to
the validity of a pleading
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b. To change a cause of action or defense
stated in the pleading
c. To state a cause of action or defense other
than the one stated
d. To set forth the pleader’s theory of his
cause of action or a Rule of evidence on
which he intends to reply
e. To furnish evidentiary information [Virata v.
Sandiganbayan, G.R. No. 103527 (1993)]
ii. Actions of 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
1. Deny, or
2. Grant the motion outright, or
3. Allow the parties the opportunity to be
heard. [Sec. 2, Rule 12]
iii. Compliance with the Order and
Effect of Non-compliance
If motion is granted, either in whole or in part,
the pleader must file a bill of particulars or a
more definite statement, within 10 calendar
days from notice of order, unless the court fixes
a different period.
The bill of particulars or a more definite
statement ordered by the court may be filed
either in a separate pleading or in an amended
pleading, serving a copy thereof on the
adverse party [Sec. 3, Rule 12]
A bill of particulars becomes part of the
pleading for which it was intended [Sec. 6, Rule
12]
Effect of non-compliance
1. If the order is not obeyed, or in case of
insufficient compliance therewith, the court
may
REMEDIAL LAW
a. Order the striking out of the pleading or
the portions thereof to which the order
is directed, or
b. Make such an order as it may deem
just. [Sec. 4, Rule 12]
2. If the plaintiff fails to obey, his complaint
may be dismissed by the court. This
dismissal shall have the effect of an
adjudication upon the merits, unless
otherwise declared by the court. [Sec. 3,
Rule 17]
3. If the 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. [Sec. 3,
Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17] [1
Riano 422, 2011 Ed.]
iv. Effect on The Period To File A
Responsive Pleading
Provided that the Motion for Bill of Particulars
is sufficient in form and substance, it stays the
period for the movant to file his responsive
pleading. [1 Riano 422, 2011 Ed.]
When to file responsive pleading
1. After
a. Service of the bill of particulars or of a
more definite pleading, or
b. Notice of denial of his motion
2. The moving party may file his responsive
pleading
a. Within the period to which he was
entitled at the time of filing his motion,
b. Which shall not be less than 5 calendar
days in any event. [Sec. 5, Rule 12]
9. DISMISSAL OF ACTIONS
a. Dismissal with Prejudice
When a motion to dismiss or an affirmative
defense is granted on the following grounds,
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the order shall bar the refiling of the same
action or claim:
a. The cause of action is barred by prior
judgment;
b. The cause of action is barred by the
statute of limitations;
c. That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished; or
d. That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds.
Note: Such rule does not bar the filing of an
appeal to challenge the granting of the motion
to dismiss or the affirmative defense. [Sec. 13,
Rule 15]
b. Dismissal
Plaintiff
Upon
Notice
by
A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time before
service of
a. The answer, or
b. A motion for summary judgment
Upon such notice being filed, the court shall
issue an order confirming the dismissal. [Sec.
1, Rule 17]
Note: Sec. 1, Rule 17 refers to “before service”,
not “before filing.”
Withdrawal is not automatic but requires an
order by the court confirming the dismissal.
Until thus confirmed, the withdrawal does not
take effect [1 Herrera 1055, 2007 Ed.]
It is not the order confirming the dismissal
which operates to dismiss the complaint. As
the name of the order implies, it merely
confirms the dismissal already effected by the
filing of the notice [1 Riano 489, 2014 Bantam
Ed.]
REMEDIAL LAW
General rule: Dismissal is without prejudice
Exceptions:
a. Unless otherwise stated in the notice
b. A notice operates as an adjudication upon
the merits when filed by a plaintiff who has
once dismissed in a competent court an
action based on or including the same
claim
[Sec. 1, Rule 17]
Two-dismissal Rule
The notice of dismissal operates as an
adjudication upon the merits [Sec. 1, Rule
17]
Applies when the plaintiff has
1. A twice dismissed action,
2. Based on or including the same claim,
3. In a court of competent jurisdiction. [1
Riano 490, 2014 Bantam Ed.]
c. Dismissal Upon Motion by
Plaintiff; Effect on Existing
Counterclaim
A complaint shall not be dismissed at the
plaintiff’s instance save upon approval of the
court and upon such terms and conditions as
the court deems proper [Sec. 2, Rule 17]
General rule: Dismissal is without prejudice
Exception: Otherwise specified in the order
[Sec. 2, Rule 17]
Effect on counterclaim
The dismissal shall be without prejudice to the
right of the defendant to prosecute his
counter­claim in a separate action unless
within 15 calendar days from notice of the
motion he manifests his preference to have his
counterclaim resolved in the same action [Sec.
2, Rule 17]
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Note: Sec. 2, Rule 17 is clear: the counterclaim
is not dismissed, whether it is a compulsory or
a permissive counterclaim because the rule
makes no distinction [1 Riano 491, 2014
Bantam Ed.]
d. Dismissal Due to The Fault of
Plaintiff
The complaint may be dismissed upon
motion of the defendant or upon the court’s
own motion if, for no justifiable cause, the
plaintiff:
1. Fails to appear on the date of the
presentation of his evidence in chief on the
complaint
a. The plaintiff’s failure to appear at the
trial after he has presented his
evidence and rested his case does not
warrant the dismissal of the case on the
ground of failure to prosecute. It is
merely a waiver of his right to crossexamine and to object to the
admissibility of evidence [Jalover v.
Ytoriaga, G.R. No. L-35989 (1977)]
2. Fails to prosecute his action for an
unreasonable length of time, also called as
non-prosequitur
a. The test for dismissal of a case due to
failure to prosecute is whether or not,
under the circumstances, the plaintiff is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA, G.R. No.
103185 (1993)]
b. The dismissal of an action pursuant to
this Rule rests upon the sound
discretion of the court. [Smith Bell and
Co. v. American President Lines Ltd.,
G.R. Nos. L-5304 to L-5324 (1954)]
c. The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
REMEDIAL LAW
[Goldloop Properties Inc. v. CA, G.R.
No. 99431 (1992)]
3. Fails to comply with the ROC or any court
order. [Sec. 3, Rule 17]
a. A case may be dismissed for failure to
answer written interrogatories under
Rule 25 even without an order from the
court to answer. [Arellano v. CFI
Sorsogon, G.R. No. L-34897 (1975)]
[also see Sec. 5, Rule 29]
General rule: This dismissal shall have the
effect of an adjudication upon the merits and is
thus a dismissal with prejudice. [AFP
Retirement v. Republic, 694 SCRA 118 (2013)]
Exception: Otherwise declared by the court.
[Sec. 3, Rule 17]
Note: Under Sec. 3, Rule 14, the plaintiff’s
failure to comply with the order of the court
to serve summons shall cause the dismissal
of the initiatory pleading without prejudice.
This rule can be seen as an exception to the
general rule that dismissal due to failure to
comply with the order of the court shall cause
dismissal with prejudice.
Effect on counterclaim
Dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the
same or in a separate action [Sec. 3, Rule 17]
e. Dismissal of Counterclaim,
Cross-claim, Or Third-party
Complaint
Provisions of Rule 17 shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint.
Voluntary dismissal by the claimant by notice
as in Sec. 1, Rule 17 shall be made:
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a. Before a responsive pleading or a motion
for summary judgment is served; or
b. If there is none, before the introduction of
evidence at trial or hearing. [Sec. 4, Rule
17]
10.
PRE-TRIAL
a. Concept of Pre-Trial
Pre-trial is a procedural device by which the
court is called upon, after the filing of the last
pleading, to compel the parties and their
lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a
formal settlement and embody in a single
document the issues of fact and law involved in
the action, and such other matters as may aid
in the prompt disposition in the action, such as
the
a. Number of witnesses the parties intend to
present
b. Tenor or character of their testimonies
c. Documentary evidence
d. Nature and purpose of each of them
e. Number of trial dates that each will need to
put on his case. [1 Herrera 1074, 2007 Ed.]
b. Nature and Purpose
Pre-trial is mandatory and should
terminated promptly. [Sec. 2, Rule 18]
be
Purpose of pre-trial is to consider
1. Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution
2. Simplification of the issues
3. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof
4. Limitation of the number and identification
of witnesses and the setting of trial dates
REMEDIAL LAW
5. Advisability of a preliminary reference of
issues to a commissioner
6. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefore be found to exist
7. The requirement for the parties to:
a. Mark their evidence if not yet marked in
the judicial affidavits of their witnesses,
Note: The Judicial Affidavit Rule requires
that documentary or object evidence must
be marked and attached to the judicial
affidavits, with such evidence being
marked as Exhibit A, B, C for the plaintiff,
and Exhibit 1, 2, 3 for the defendant. [Sec.
2(a)(2), AM No. 12-8-8-SC]
b. Examine and make comparisons of
the adverse parties’ evidence visa-vis the copies to be marked,
c. Manifest for the record, stipulations
regarding the faithfulness of the
reproductions and the genuineness
and due execution of the adverse
parties’ evidence,
d. Reserve evidence not available at
the pre-trial, but only in the
following manner, or else it shall
not be allowed
i. Testimonial evidence: by
giving the name or position and
the nature of the proposed
witness
ii. Documentary/Object
evidence:
by
giving
a
particular description of the
evidence
8. Such other matters as may aid in the
prompt disposition of the action
Failure without just cause of a party and
counsel to appear during pre-trial, despite
notice, shall result in a waiver of any
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objections to the faithfulness of the
reproductions marked, or their genuineness
and due execution
Failure without just cause to bring the evidence
required shall be deemed a waiver of the
presentation of such evidence. [Sec. 2, Rule
18]
Note: Both waivers mentioned above are
based on lack of just cause either to appear
during pre-trial or to bring the evidence
required.
c. Notice of Pre-Trial
After the last responsive pleading has been
served and filed, the branch clerk of court shall
issue a notice of pre-trial within 5 calendar
days from filing. [Sec. 1, Rule 18]
Note: Under the Amended Rules, there is no
longer a need for the plaintiff to move ex parte
for the case to be set for pre-trial. Such was the
case before, as mandated by AM No. 03-1-09SC. Under that circular, the plaintiff used to be
burdened with the duty to move ex parte that
the case be set for pre-trial conference. Such
was done 5 days from the date of the filing of
the reply. If the plaintiff failed to move for such,
it became the duty of the branch clerk of court
to do so. [BPI v. Genuino, G.R. No. 208792
(2015)] The Amended Rules have now deleted
the requirement for the plaintiff to move for pretrial, and has directly vested it with the clerk of
court.
The “last pleading” need not be literally
construed as the actual filing of the last
pleading. For the purpose of pre-trial, the
expiration of the period for filing the last
pleading is sufficient. [Sarmiento v. Juan, G.R.
No. L-56605 (1983)]
REMEDIAL LAW
The sufficiency of the written notice of pre-trial
is irrelevant where evidence shows that
counsel and the parties actually knew of the
pre-trial. [Bembo v. CA, G.R. No. 116845
(1995)]
When pre-trial conducted
The notice of pre-trial shall set pre-trial to be
conducted not later than 60 calendar days
from the filing of the last responsive pleading.
[Sec. 1, Rule 18]
Contents of Notice of Pre-Trial
The notice of pre-trial shall include the dates
set for:
a. Pre-trial;
b. Court-Annexed Mediation (CAM); and
c. Judicial Dispute Resolution (JDR), if
necessary [Sec. 3, Rule 18]
Service of Notice of Pre-Trial
The notice of pre-trial shall be served on
counsel, or on the party if he or she has no
counsel [Sec. 3, Rule 18]
d. Appearance of Parties; Effect of
Failure to Appear
It shall be the duty of the parties and their
counsel to appear at:
a. Pre-trial,
b. Court-annexed mediation, and
c. Judicial dispute resolution, if necessary.
[Sec. 4, Rule 18]
Note: Both parties and their counsel are
required to attend. Appearance of either only
the party or his counsel counts as nonappearance, unless:
Excused non-appearance
Appearance of a party and counsel may only
be excused for:
a. Acts of god,
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b. Force majeure, or
c. Duly substantiated physical inability. [Sec.
4, Rule 18]
Appearance by Representative
A representative may appear on behalf of a
party, but must be fully authorized in writing to:
a. Enter into an amicable settlement,
b. To submit to alternative modes of dispute
resolution, and
c. To enter into stipulations or admissions of
facts and documents. [Sec. 4, Rule 18]
Note: It is not sufficient for the representative to
be given the power to enter into one or two of
the matters enumerated. An incomplete
authority does not satisfy the requirement of
the Rules and should be deemed the
equivalent of having no authority at all. [1 Riano
429, 2016 Bantam Ed.]
Moreover, only the authorization is required in
order for a representative to appear on behalf
of a party. A ground for excused nonappearance need not concur with the written
authorization in order to allow a representative
to appear on behalf of the party.
The written authorization must be in the form of
a special power of attorney as authority to
enter into amicable settlement must be in such
form [Sec. 23, Rule 138; Art. 1878(3), Civil
Code]
Effect of failure to appear
Note: The party and counsel must have been
duly notified and their failure to appear was
without valid cause. It is only then that the
following effects occur upon non-appearance
of both party and counsel:
REMEDIAL LAW
i. By the plaintiff and counsel
The action shall be dismissed with prejudice,
unless otherwise ordered by the court. [Sec. 5,
Rule 18]
Remedy: Motion for reconsideration, then
appeal
Note: This would be the proper remedy
because dismissal with prejudice amounts to
an adjudication on the merits and is thus, final.
[1 Riano 426, 2016 Bantam Ed.]
ii. By the defendant and counsel
The plaintiff shall be allowed to present
evidence ex parte within 10 calendar days from
termination of pre-trial, and judgment shall be
rendered based on the evidence offered. [Sec.
5, Rule 18]
Remedy: Motion for reconsideration, and if the
denial is tainted with grave abuse of discretion,
a petition for certiorari
Note: This is because the order of the court
allowing the plaintiff to present evidence ex
parte does not dispose of the case with finality
and the order is, therefore, interlocutory and
not appealable. [1 Riano 428, 2016 Bantam
Ed. citing Sec. 1(b), Rule 41]
The non-appearance of the defendant in pretrial is not a ground to declare him in default.
While the effect of the failure of the defendant
to appear at the pre-trial is similar to that of
default (possible presentation of evidence ex
parte), under the Rules, this consequence is
not to be called a declaration of default. [1
Riano 302, 2016 Bantam Ed.]
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Default by
defendant [Sec. 3,
Rule 9]
CIVIL PROCEDURE
Failure to appear
by defendant [Sec.
5, Rule 18]
Upon motion of the Not required
claiming party with
notice
to
the
defending party
Requires proof of Not required
failure to answer
Court may render Court
renders
judgment
without judgment based on
receiving evidence
the
evidence
presented ex parte
Judgment by default
Judgment ex parte
Relief awarded must No such limitation
be the same in
nature and amount
as prayed for in the
complaint
e. Pre-Trial Brief; Effect of Failure
to File
When to file and serve pre-trial brief
The parties shall file with the court and serve
on the adverse party to ensure receipt at least
3 calendar days before the date of pre-trial
their pre-trial briefs. [Sec. 6, Rule 18]
Contents of pre-trial brief:
a. A concise statement of the case and the
reliefs prayed for;
b. A summary of admitted facts and proposed
stipulation of facts;
c. The main factual and legal issues to be
tried or resolved;
d. The propriety of referral of factual issues to
commissioners;
REMEDIAL LAW
e. The documents or other object evidence to
be marked, stating the purpose thereof;
f. The names of the witnesses, and the
summary of their respective testimonies;
and
g. A brief statement of points of law and
citation of authorities. [Sec. 6, Rule 18]
Legal effect of representations and
statements in the pre-trial brief
The parties are bound by the representations
and statements in their respective pre-trial
briefs. [A.M. 03-1-09-SC (2004)]
Note: Representations and statements in the
pre-trial briefs are in the nature of judicial
admissions [Sec. 4, Rule 129]
Effect of failure to file:
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
[Sec. 6, Rule 18] Therefore, the following
sanctions are meted out to those failing to file
their respective pre-trial briefs:
1. Waiver of any objections to the faithfulness
of the reproductions marked, or their
genuineness and due execution, [Sec. 2,
Rule 18]
2. If plaintiff and counsel fail to appear
• The action will be dismissed with
prejudice, unless otherwise ordered by
the court
If defendant and counsel fail to appear
• The plaintiff shall be allowed to present
evidence ex parte within 10 calendar
days from termination of pre-trial, and
judgment shall be rendered based on
the evidence offered. [Sec. 5, Rule 18]
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examined in one (1) day only, shall be
strictly adhered to subject to the courts'
discretion during trial on whether or not
to extend the direct and/or crossexamination for justifiable reasons
[Item I-A-5-i, A.M. No. 03-1-09-SC]
f. Pre-Trial Order
When is a Pre-trial order Issued
The court shall issue and order within 10
calendar days from termination of pre-trial.
[Sec. 7, Rule 18]
•
Effects of pre-trial order
The contents of the order shall control the
subsequent course of the action, unless:
a. The order is modified before trial to prevent
manifest injustice, or [Sec. 7, Rule 18]
b. There are issues impliedly included therein
or may be inferable therefrom by
necessary implication. [Philippine Export
and Foreign Loan Guarantee Corp. v.
Amalgamated
Management
and
Development Corp., G.R. No. 177729
(2011)]
i.
Contents of a pre-trial order
a. An enumeration of the admitted facts;
b. The minutes of the pre-trial conference
prepared by the branch clerk of court [Sec.
2, Rule 18];
c. The legal and factual issued to be tried;
d. The
applicable
law,
rules,
and
jurisprudence;
e. The evidence marked;
f. The specific trial dates for continuous trial,
which shall be within the period provided by
the rules;
g. The case flowchart to be determined by the
court
• Contains the different stages of the
proceedings up to the promulgation of
the decision and the use of time frames
for each stage in setting the trial dates.
h. A statement that the one-day examination
of witness rule and most important witness
rule shall be strictly followed; and
• One day examination of witness rule
The One-Day Examination of Witness
Rule, that is, a witness has to be fully
REMEDIAL LAW
Most important witness rule
The court shall determine the most
important witnesses to be heard and
limit the number of witnesses (Most
Important Witness Rule) [Item I-A-5-j,
AM No. 03-1-09-SC]
The court shall require the parties
and/or counsel to submit to the Branch
COC the names, addresses and
contact numbers of the witnesses to be
summoned by subpoena [Item I-A-5-l,
AM No. 03-1-09-SC]
A statement that the court shall render
judgment on the pleadings or summary
judgment, as the case may be. [Sec. 7,
Rule 18]
Use of Judicial Affidavits
The direct testimony of witnesses for the
plaintiff shall be in the form of judicial
affidavits. However, even witnesses for the
defendant are required to submit judicial
affidavits, which likewise take the place of their
direct testimony. [AM No. 12-8-8-SC, Sec.
2(a)(1)]
After identification of such affidavits, crossexamination shall proceed immediately. [Sec.
7, Rule 18]
Postponement of presentation of witnesses
General Rule: Postponement of presentation
of the parties’ witnesses at a scheduled date is
prohibited.
• Effect of failure to appear without valid
cause: The presentation of the scheduled
witness will proceed with the absent party
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Exception: A motion for postponement for
presentation of witnesses is allowed if the
postponement is based on:
a. Acts of God,
b. Force majeure, or
c. Duly substantiated inability of the witness
to appear and testify.
Note: The party causing the postponement
must still finish his presentation of evidence
within the remaining dates previously agreed
upon. [Sec. 7, Rule 18 in relation to Sec. 2,
Rule 30]
Conduct of pre-trial
The judge shall be the one to ask questions
on issues raised by the parties, and all
questions or comments by counsel or parties
must be directed to the judge to avoid hostilities
between the parties. [A.M. No. 03-1-09-SC
(2004)]
Motu proprio order for summary judgment
or judgment on the pleadings
The court may motu proprio include in the pretrial order that the case be submitted for
summary judgment or judgment on the
pleadings without need of position papers or
memoranda, and without prejudice to a party
moving for either judgement on the pleadings
or summary judgement when:
a. There be no more controverted facts,
b. No more genuine issue as to any material
fact,
c. There be an absence of any issue, or
d. Should the answer fail to tender an issue.
[Sec. 10, Rule 18]
Note: Such order is deemed an interlocutory
order as it is included in the pre-trial order.
However, the order of the court submitting the
case for such judgment shall not be subject to
REMEDIAL LAW
appeal or certiorari as provided for expressly
under Sec. 10, Rule 18.
Judgment shall be rendered within 90 calendar
days from termination of pre-trial. [Sec. 10,
Rule 18]
Court-Annexed Mediation (CAM)
After pre-trial and after the issues are joined,
the court shall refer the parties for mandatory
CAM.
Period: Not exceeding 30 calendar days
without extension.
[Sec. 8, Rule 18]
Note: A.M. 11-1-6-SC-PHILJA insofar as it
provides that an extended period of another 30
days may be granted by the court upon motion
by the mediator and with the conformity of the
parties shall no longer apply.
Effect of failure of mediation:
a. Proceed with trial; or
b. If the judge is convinced that settlement is
possible, referral to another court to
proceed with JDR.
Judicial Dispute Resolution (JDR)
If the judge of the court to which the case is
originally raffled is convinced that settlement is
still possible, the case may be referred to
another court for JDR.
Period: Non-extendible period of 15 calendar
days from notice of failure of CAM. Note that
the period to conduct JDR is included in the
period for the presentation of plaintiff’s
evidence. [Sec. 1[a][i], Rule 30]
Effect of failure: Trial before the original court
shall proceed on the dates agreed upon.
[Sec. 9, Rule 18]
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Note: JDR is no longer mandatory as provided
for under A.M. 11-1-6-SC-PHILJA due to the
amended rules. The aforementioned A.M. also
provides for a 30-day JDR for first level courts,
a 60-day JDR for second level courts, and
discretion on the part of the JDR judge to order
a longer period of JDR. Such provisions are
now repealed due to the Amended Rules
providing for a non-extendible shorter period of
15 calendar days for JDR.
As to
when
conducted
Confidentiality
All proceedings during CAM and JDR shall be
confidential. [Sec. 9, Rule 18]
REMEDIAL LAW
Pre-trial in a
Civil Case
[Rule 18]
Pre-trial in a
Criminal Case
[Rule 118]
Not later than
60
calendar
days from the
filing of the last
responsive
pleading.
[Sec. 1]
After
arraignment
and within 30
days from the
date the court
acquires
jurisdiction
over
the
person of the
accused
Effect of non-appearance at CAM or JDR
Note: Non-appearance at CAM or JDR, if
necessary, shall be deemed as nonappearance at pre-trial. [Sec. 3, Rule 18]
Therefore, the following sanctions are meted
out to non-appearing parties at CAM or JDR:
1. Waiver of any objections to the faithfulness
of the reproductions marked, or their
genuineness and due execution, [Sec. 2,
Rule 18]
2. If plaintiff and counsel fail to appear
• The action will be dismissed with
prejudice, unless otherwise ordered by
the court
If defendant and counsel fail to appear
• The plaintiff shall be allowed to present
evidence ex parte within 10 calendar
days from termination of pre-trial, and
judgment shall be rendered based on
the evidence offered. [Sec. 5, Rule 18]
Exception:
If
special
laws
and circulars
provide for a
shorter period
[Sec. 1]
As to need
of motion
g. Pre-Trial in Civil Cases vs. PreTrial in Criminal Cases
Page 86 of 525
There is no
longer a need
for the plaintiff
to move ex
parte to set the
case for pretrial. Under the
Amended
Rules,
the
clerk of court
should issue
the notice of
pre-trial within
5
calendar
days
from
filing of the last
responsive
pleading.
[Sec. 1]
Ordered by the
court and no
motion
is
required from
either
party
[Sec. 1]
U.P. LAW BOC
REMEDIAL LAW
CIVIL PROCEDURE
As to
whether or
not
mandatory
Mandatory
[Sec. 2]
Mandatory
[Sec. 1]
As to
effect of
failure to
appear
Of the plaintiff
– the case
shall
be
dismissed with
prejudice,
unless
the
court orders
If the counsel
for the accused
or
the
prosecutor
does
not
appear at the
pre-trial
conference
and does not
offer
an
acceptable
excuse for his
lack
of
cooperation,
the court may
impose proper
sanctions
or
penalties. [Sec.
3]
Of
the
defendant –
the
plaintiff
shall
be
allowed
to
present
evidence ex
parte,
and
judgment shall
be rendered
based thereon
[Sec. 5, Rule
18]
As to
agreement
s of
admission
s made
As to
possibility
of an
amicable
settlement
The court shall
consider this
matter [Sec.
2(a)]
Not
in
the
enumeration to
be considered.
[Sec. 1]
As to
requireme
nt of PreTrial Brief
A pre-trial brief
is specifically
required to be
submitted
[Sec. 6]
A pre-trial brief
is not required
under
Rule
118.
11.
The pre-trial
order
shall
include
an
enumeration
of the admitted
facts
and
proposed
stipulation of
facts.
[Sec.
7(a)]
Shall
be
reduced
in
writing
and
signed by the
accused and
counsel,
otherwise, they
cannot be used
against
the
accused. [Sec.
2]
INTERVENTION
Definition of Intervention
A proceeding in a suit or an action by which a
third person is permitted by the court to
make himself a party, either:
1. Joining plaintiff in claiming what is sought
by the complaint,
2. Uniting with defendant in resisting the
claims of the plaintiff, or
3. Demanding something adverse to both of
them. [1 Herrera 1117, 2007 Ed., citing
Gutierrez v. Villegas, G.R. No. L-11848
(1962)]
Purpose of Intervention
Its purpose is to afford one not an original party,
yet having a certain right/interest in the pending
case, the opportunity to appear and be
joined so he could assert or protect such
right/interest [Cariño v. Ofilada, G.R. No.
102836 (1993)]
Nature of Intervention
Intervention cannot alter the nature of the
action and the issues already joined. [Castro v.
David, 100 Phil 454 (1956)]
Intervention is never an independent action,
but is ancillary and supplemental to the
existing litigation. [Saw vs CA, 195 SCRA 740
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(1991)] An independent controversy cannot be
injected in the suit by intervention since it would
enlarge the issues and expand the scope of the
remedies. [Mactan-Cebu Intl Airport Authority
vs Heirs of Minoza, 641 SCRA 520 (2011)]
a. Requisites for Intervention
1. A motion for leave to intervene filed at any
time before rendition of judgement by the
trial court [Sec. 2, Rule 19]
Note: A motion for intervention is a litigious
motion. Therefore, the court shall resolve
the motion within 15 calendar days from
receipt of the opposition or upon expiration
of the period to file such opposition. The
period to file an opposition would be 5
calendar days from the receipt of such
opposition. [Sec. 5, Rule 15]
REMEDIAL LAW
The interest must be actual and material, a
concern which is more than mere curiosity, or
academic or sentimental desire; it must not be
indirect and contingent, indirect and remote,
conjectural, consequential or collateral [Virra
Mall Tenants v. Virra Mall, G.R. No. 182902
(2011)]
Notwithstanding the presence of a legal
interest, permission to intervene is subject to
the sound discretion of the court, the
exercise of which is limited by considering
"whether or not the intervention will unduly
delay or prejudice the adjudication of the rights
of the original parties and whether or not the
intervenor’s rights may be fully protected in a
separate proceeding [Virra Mall Tenants v.
Virra Mall, G.R. No. 182902 (2011)]
b. Time to Intervene
2. A legal interest:
a. In the matter in litigation;
b. In the success of either of the parties;
c. An interest against both; or
d. So situated as to be adversely affected
by a distribution or other disposition of
property in the custody of the court or
of an officer thereof
3. Intervention will not unduly delay or
prejudice the adjudication of rights of the
original parties
4. Intervenor’s rights may not be fully
protected in a separate proceeding. [Sec.
1, Rule 19; Lorenza Ortega v. CA, G.R. No.
125302 (1998)]
Meaning of legal interest
The interest which entitles a person to
intervene in a suit must be on the matter in
litigation and of such direct and immediate
character that the intervenor will either gain or
lose by the direct legal operation and effect of
the judgment [1 Regalado 324-325, citing 6318
v. Nocom, G.R. No. 175989 (2008)]
The motion to intervene may be filed at any
time before rendition of judgment by the trial
court. [Sec. 2, Rule 19]
How effected
a. By filing a motion to intervene,
b. Attaching a copy of the pleading-inintervention, and
c. Serving the motion and pleading-inintervention on the original parties [Sec. 2,
Rule 19]
Pleadings-in-intervention
a. Complaint-in-intervention – If intervenor
asserts a claim against either or all of the
original parties
b. Answer-in-intervention – If intervenor
unites with the defending party in resisting
a claim against the latter
[Sec. 3, Rule 19]
c. Answer to complaint-in-intervention - It
shall be filed within 15 calendar days from
notice of the order admitting the complaint-
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in-intervention, unless a different period is
fixed by the court [Sec. 4, Rule 19]
c. Remedy for the Denial of Motion
to Intervene
An improper denial of a motion for intervention
is correctable by appeal [1 Regalado 324, 2010
Ed., citing Ortiz v. Trent, G.R. No. 5099 (1909)
and Hospicio de San Jose v. Piccio, G.R. No.
L-8540 (1956)]
But if there is grave abuse of discretion,
mandamus will lie, where there is no other
plain, speedy and adequate remedy [1
Regalado 324, 2010 Ed., citing Dizon v.
Romero, G.R. No. L-26252 (1968) and Macias
v. Cruz, G.R. No. L-28947 (1973)]
Remedy for granting of the motion to
intervene
An improper granting of a motion for
intervention may be controlled by certiorari and
prohibition. [1 Regalado 324, 2010 Ed., citing
Pflieder v. De Britanica, G.R. No. L-19077
(1964)]
12.
REMEDIAL LAW
CIVIL PROCEDURE
SUBPOENA
Definition
A process directed to a person requiring him or
her:
1. To attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority, or for
the taking of his or her deposition
2. Also to bring any books, documents, or
other things under his or her control. [Sec.
1, Rule 21]
Subpoena
Summons
A process directed to
a person requiring
him to attend and to
testify. It may also
require him to bring
with him any books,
documents, or other
things
under
his
control [Sec. 1, Rule
21]
A direction that the
defendant
answer
within the time fixed
by the ROC [Sec. 2,
Rule 14]
Directed to a person Directed
[Sec. 1, Rule 21]
defendant
Rule 14]
to
the
[Sec. 2,
Costs
for
court Tender of costs not
attendance and the required by Rule 14
production
of
documents and other
materials subject of
the subpoena shall be
tendered or charged
accordingly. [Sec. 6,
Rule 21]
Who may issue
1. Court before whom the witness is required
to attend
2. Court of the place where the deposition is
to be taken
3. Officer or body authorized by law to do so
in
connection
with
investigations
conducted by said officer or body, or
4. Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines. [Sec. 2, Rule 21]
Form and contents
1. Shall state the name of the court and the
title of the action or investigation
2. Shall be directed to the person whose
attendance is required
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3. For subpoena duces tecum, shall also
contain a reasonable description of the
books, documents or things demanded
which must appear to the court prima facie
relevant. [Sec. 3, Rule 21]
When issued against prisoners
When applied for, the judge or officer shall
examine and study carefully the application to
determine whether it is made for a valid
purpose. [Sec. 2, Rule 21]
When
Supreme
Court
authorization
required
When the subpoena for appearance or
attendance in any court is issued against a
prisoner:
1. Sentenced to death, reclusion perpetua, or
life imprisonment, and
2. Confined in any penal institution. [Sec. 2,
Rule 21]
Personal appearance in court; same effect
as subpoena
A person present in court before a judicial
officer may be required to testify as if he or she
were in attendance upon a subpoena. [Sec 7,
Rule 21]
Subpoena for depositions
Proof of service of notice to take a deposition
shall constitute sufficient authorization for the
issuance of subpoenas for the persons named
in such notice.
Note: In order to issue a subpoena duces
tecum, an order of the court shall be necessary.
[Sec 5, Rule 21]
a. Subpoena Duces Tecum
A process directed to a person requiring him to
bring with him books, documents, or other
things under his control [Sec. 1, Rule 21]
REMEDIAL LAW
The subpoena duces tecum is, in all respects,
like the ordinary subpoena ad testificandum,
with the exception that it concludes with an
injunction that the witness shall bring with
him and produce at the examination the
books, documents, or things described in
the subpoena [see Sec. 1, Rule 21]
Note the requirements for a subpoena duces
tecum, see item (3) of “Form and contents”
above.
b. Subpoena Ad Testificandum
A process directed to a person requiring him to
attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by
competent authority or for the taking of his
deposition [Sec. 1, Rule 21]
Note: This is the technical and descriptive term
for the ordinary subpoena. [1 Regalado 330,
2010 Ed.]
c. Service of Subpoena
Service of a subpoena shall be made in the
same manner as personal or substituted
service of summons [Sec. 6, Rule 21]
Formalities
a. The original is exhibited to the person
served;
b. A copy is delivered to him; and
c. Costs for court attendance and the
production of documents and other
materials subject of the subpoena shall be
tendered or charged accordingly. [Sec. 6,
Rule 21]
When made: must be made so as to allow the
witness a reasonable time for preparation and
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U.P. LAW BOC
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travel to the place of attendance [Sec. 6, Rule
21]
d. Compelling
Attendance
Witnesses; Contempt
of
Warrant to compel attendance
The court which issued the subpoena may
issue a warrant to the sheriff or his or her
deputy to arrest the witness and to bring him or
her before the court or officer where his or her
attendance is required, upon
a. Proof of service, and
b. Failure of witness to attend. [Sec. 8, Rule
21]
Costs
The cost of such warrant and seizure of such
witness shall be paid by the witness if the
court issuing it shall determine that his or her
failure to answer the subpoena was willful and
without just excuse [Sec. 8, Rule 21]
Failure to obey
Effect of failure by any person without
adequate cause to obey a subpoena served
upon him or her:
a. Contempt of court who issued the
subpoena, or
b. Punishment in accordance with the
applicable law or rule if the subpoena was
not issued by a court. [Sec. 9, Rule 21]
When Sec. 8 and Sec. 9 will not apply
Provisions regarding the compelling of
attendance and contempt shall not apply to a:
a. Witness who resides more than 100 km
from his or her residence to the place
where he or she is to testify by the ordinary
course of travel; or
b. Detention prisoner if no permission of the
court in which his or her case is pending
was obtained. [Sec. 10, Rule 21]
REMEDIAL LAW
Viatory Right
The right not to be compelled to attend upon a
subpoena by reason of the distance from the
residence of the witness to the place where he
is to testify is sometimes called the viatory
right of a witness [1 Regalado 334-335, 2010
Ed.]
Note: Such right applies only in civil cases, not
criminal cases. [Genorga v. Quitain, A.M. No.
981-CFI (1977)]
e. Quashing of Subpoena
For quashing subpoena duces tecum
1. A motion is promptly made and, in any
event, at or before the time specified
therein
2. Grounds
a. Subpoena is unreasonable and
oppressive, or
b. Relevancy of the books, documents or
things does not appear, or
c. Person in whose behalf the subpoena
is issued fails to advance the
reasonable cost of the production
thereof
d. Witness fees and kilometrage allowed
by these Rules were not tendered
when the subpoena was served. [Sec.
4, Rule 21]
For quashing subpoena ad testificandum
a. Witness is not bound thereby, or
b. Witness fees and kilometrage allowed by
the ROC were not tendered when the
subpoena was served. [Sec. 4, Rule 21]
13.
COMPUTATION OF TIME
Applicability
In computing any period of time:
a. Prescribed or allowed by the Rules,
b. By order of the court, or
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c. By any applicable statute. [Sec. 1, Rule 22]
6. Physical and mental
persons [Rule 28]
How to compute time
The day of the act/event from which the
designated period begins to run is the
excluded and the date of performance
included.
Note: If the last day of the period falls on a
Saturday, Sunday, or legal holiday in the place
where the court sits, the time shall not run
until the next working day. [Sec. 1, Rule 22]
Effect of interruption
Should an act be done which interrupts the
running of the period, the allowable period after
such interruption shall start to run on the day
after notice of cessation of the cause
thereof.
Note: The day of the act that caused the
interruption, shall be excluded in the
computation of the period. [Sec. 2, Rule 22]
14.
MODES OF DISCOVERY
Discovery
A device employed by a party to obtain
information about relevant matters on the
case from the adverse party in the preparation
for trial. [1 Riano 437, 2016 Bantam Ed.]
Purpose
To permit mutual knowledge before trial of all
relevant facts gathered by both parties so that
either party may compel the other to disgorge
facts whatever he has in his possession [1
Riano 437, 2016 Bantam Ed.]
Modes of Discovery
1. Depositions pending actions [Rule 23]
2. Depositions before action or pending
appeal [Rule 24]
3. Interrogatories to parties [Rule 25]
4. Admission by adverse party [Rule 26]
5. Production or inspection of documents or
things [Rule 27]
REMEDIAL LAW
examination
of
a. Depositions Pending Action;
Depositions Before Action or
Pending Appeal
i. Meaning of Deposition
Deposition – taking of testimony out of court
of any person, whether party to the action or
not but at the instance of a party to the action.
It is taken out of court. [1 Riano 438, 2016
Bantam Ed.]
Methods
a. By oral examination, or
b. By written interrogatory. [Sec. 1, Rule 23]
Kinds of depositions
1. Depositions pending action [Rule 23]
2. Depositions before action or pending
appeal [Rule 24]
Depositions pending action
The testimony of any person may be taken
upon ex parte motion of a party.
Note: The attendance of witnesses may be
compelled by the use of subpoena as provided
in Rule 21. [Sec. 1, Rule 23]
Deposition of a person deprived of liberty
The deposition may be taken only by leave of
court on such terms as the court
prescribes. [Sec. 1, Rule 23]
Before whom depositions are taken
a. Within the Philippines, it may be taken
before a
i.
Judge,
ii.
Notary public, or
iii.
Any person authorized to administer
oaths, as stipulated by the parties in
writing. [Sec. 14, Rule 23]
[Sec. 10, Rule 23]
b. Within a foreign state or country, it may be
taken
i.
On notice before a secretary of
embassy or legation, consul general,
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consul, vice- consul, or consular agent
of the Philippines,
ii.
Before such person or officer as may
be appointed by commission or under
letters rogatory, or
iii.
Any person authorized to administer
oaths as stipulated by parties in writing.
[Sec. 14, Rule 23]
[Sec. 11, Rule 23]
Disqualification by interest
No deposition shall be taken before a person
who is
a. A relative within the 6th degree of
consanguinity or affinity,
b. An employee or counsel of any of the
parties,
c. A relative within the same degree, or
employee of such counsel, or
d. Any person financially interested in the
action.
[Sec. 13, Rule 23]
Taking depositions upon oral examination
1. A party desiring to take the deposition of
any person upon oral examination shall
give reasonable notice in writing to
every other party to the action. The
notice shall state:
a. The time and place for taking the
deposition,
b. The name and address of each person
to be examined, if known, and
c. if the name is not known, a general
description sufficient to identify him or
the particular class or group to which
he belongs.
Note: On motion of any party upon whom the
notice is served, the court may for cause shown
enlarge or shorten the time [Sec. 15, Rule 23]
2. An order for protection of the parties
and the deponent may be issued by the
court where the action is pending:
a. After notice is served,
b. Upon motion by any party or the
person to be examined,
c. For good cause shown
[Sec.16, Rule 23]
REMEDIAL LAW
3. The attendance of the witnesses may be
compelled by the use of a subpoena [Sec.
1, Rule 23]
4. Examination and cross-examination of
deponents may proceed as permitted at
the trial under Secs. 3 to 18 of Rule 132
[Sec 3, Rule 23]
5. All objections made at the time of the
examination to the qualifications of the
officer taking the deposition, or to the
manner of taking it, or to the evidence
presented, or to the conduct of any party,
and any other objection to the proceedings,
shall be noted by the officer upon the
deposition. Evidence objected to shall be
taken subject to the objections [Sec. 17,
Rule 23]
Effect of taking depositions
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition. [Sec. 7, Rule 23]
Depositions before actions
Referred to as perpetuation of testimony
because their objective is to perpetuate the
testimony of a witness for future use, in the
event of further proceedings. [1 Regalado 363,
2010 Ed.]
Requisites
a. Any person who desires to perpetuate
i.
his own testimony; or
ii.
the testimony of another person
b. Regarding any matter that may be
cognizable in any court of the Philippines.
[Sec. 1, Rule 24]
Procedure for deposition before action
1. File a verified petition in the court of the
place of the residence of any expected
adverse party. The petition shall be entitled
in the name of the petitioner and shall show
that:
a. The petitioner expects to be a party to
an action in a court of the Philippines
but is presently unable to bring it or
cause it to be brought,
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b. The subject matter of the expected
action and his interest therein,
c. The facts which he desires to
establish by the proposed testimony
and his reasons for desiring to
perpetuate it,
d. The names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known, and
e. The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit
Note: Such petition shall ask for an order
authorizing the petitioner to take the
depositions of the persons sought to be
examined who are named in the petition for the
purpose of perpetuating their testimony.
[Sec. 2, Rule 24]
2. The petitioner shall serve a notice upon
each person named in the petition as an
expected adverse party, together with a
copy of the petition, stating that the
petitioner will apply to the court, at a time
and place named therein, for the order
described in the petition.
•
At least 20 calendar days before the
date of the hearing, the court shall
cause notice thereof to be served on
the parties and prospective deponents
in the manner provided for service of
summons. [Sec. 4, Rule 23]
3. If the court is satisfied that the perpetuation
of the testimony may prevent a failure or
delay of justice, it shall make an order
designating or describing the persons
whose deposition may be taken and
specifying the subject matter of the
examination and whether the depositions
shall be taken upon oral examination or
written interrogatories. The depositions
may then be taken in accordance with Rule
23 before the hearing [Sec. 4, Rule 24]
REMEDIAL LAW
Deposition pending appeal
If an appeal has been taken or the time for
taking such has not yet expired, the court in
which the judgment was rendered may allow
the taking of depositions of witnesses to
perpetuate their testimony for use in the event
of further proceedings in said court. [Sec. 7,
Rule 24]
Procedure for deposition pending appeal
1. The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof
as if the action was pending therein.
2. The motion shall state the
a. Names and addresses of the persons
to be examined,
b. The substance of the testimony which
he expects to elicit from each, and
c. Reason
for
perpetuating
their
testimony.
3. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the depositions to be taken,
and thereupon the depositions may be
taken and used in the same manner and
under the same conditions as are
prescribed in these Rules for depositions
taken in pending actions. [Sec. 7, Rule 24]
ii. Uses; Scope of Examination
General uses of deposition
Intended as a means to compel disclosure of
facts resting in the knowledge of a party or
other person, which are relevant in a suit or
proceeding. [1 Regalado 349, 2010 Ed.]
Scope of examination
Unless otherwise ordered by the court as
provided by Secs. 16 and 18, Rule 23, the
deponent may be examined regarding any
matter:
1. Not privileged, and
2. Relevant to the subject of the pending
action,
a. Whether relating to the claim or
defense of any other party;
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b. Including the existence, description,
nature, custody, condition, and location
of any books, documents, or other
tangible things, and
c. Including the identity and location of
persons having knowledge of relevant
facts.
General rule: A deposition is not a substitute
for the actual testimony in open court of a party
or witness. If the witness is available to testify,
he should be presented in court to testify. If
available to testify, a party’s or witness’
deposition is inadmissible in evidence for being
hearsay. [Dasmarinas Garments Inc. v. Reyes,
G.R. No. 108229 (1993)]
Exception: Depositions may be used as
evidence under the circumstances in Sec. 4,
Rule 23.
Specific uses of depositions
By
whom
Deposition
Purpose
used
Contradicting
or
impeaching
the
Any
Any
testimony
of
deposition
party
deponent as a
witness
Deposition of
a party or of
anyone who
at the time of
taking
the
deposition
was
an
officer,
director, or An
managing
adverse Any purpose
agent of a party
public
or
private
corporation,
partnership,
or
association
which is a
party
Deposition of
a
witness,
whether
or
not a party
Page 95 of 525
Any
party
Any purpose if the
court finds that
1. Witness is
dead, or
2. Witness
resides more
than 100 km
from the place
of trial or
hearing, or is
out of the
Philippines,
unless it
appears that
his absence
was procured
by the party
offering the
deposition, or
3. Witness is
unable to
attend or testify
because of
age, sickness,
infirmity, or
imprisonment,
or
4. Party offering
the deposition
has been
unable to
procure the
attendance of
the witness by
subpoena; or
5. Upon
application and
notice, that
such
exceptional
circumstances
exist as to
make it
desirable, in
the interest of
justice and with
due regard to
the importance
of presenting
the testimony
of witnesses
U.P. LAW BOC
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CIVIL PROCEDURE
orally in open
court, to allow
the deposition
to be used;
[Sec. 4, Rule 23]
Effect of using deposition
General rule: The introduction in evidence of
the deposition or any part thereof for any
purpose makes the deponent the witness of
the party introducing the deposition
Exceptions:
1. The deposition is used to contradict or
impeach the deponent.
2. The deposition of a party or of any one who
at the time of taking the deposition was an
officer, director, or managing agent of a
public or private corporation, partnership,
or association which is a party may be used
by an adverse party for any purpose. [Sec.
4(b), Rule 23]
[Sec. 8, Rule 23]
Effect of only using a part of the deposition
If only part of a deposition is offered in evidence
by a party, the adverse party may require him
to introduce all of it which is relevant to the
part introduced, and any party may introduce
any other parts. [Sec. 4(d), Rule 23]
iii. When
May
Objections
Admissibility Be Made
to
Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing
to receiving in evidence any deposition or part
thereof for any reason which would require the
exclusion of the evidence if the witness were
then present and testifying [Sec. 6, Rule 23]
iv. When May Taking of Deposition
Be Terminated or its Scope
Limited
When the court/RTC of the place where the
deposition is being taken may order the
termination or the scope of the deposition
limited
a. At any time during the taking of the
deposition,
b. on motion or petition of any party or of the
deponent,
c. upon a showing that the examination is
being conducted in bad faith or in such
manner, as unreasonably to annoy,
embarrass, or oppress the deponent or
party,
[Sec. 16, Rule 23]
Order terminating examination
If the order made terminates the examination,
it shall be resumed only upon the order of the
court in which the action is pending.
Suspension of taking of deposition
Upon demand of the objecting party or
deponent, the taking of the deposition shall be
suspended for the time necessary to make a
notice for an order.
Note: The court may impose upon either party
or witness the requirement to pay reasonable
costs and expenses.
[Sec. 18, Rule 23]
Effect of errors
depositions
Error and
Irregularities
Objection as to the
notice for taking a
deposition
Objection to taking
a
deposition
because
of
disqualification of
officer
before
whom it is to be
taken
Objection to the
competency of a
witness
or
competency,
relevancy,
or
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and
irregularities
in
Effect
Waived
Unless
written
objection is promptly
served upon party
giving notice
Waived
Unless made
(1) Before taking of
deposition begins or
(2) As soon thereafter
as the disqualification
becomes known or
could be discovered
with
reasonable
diligence
Not waived by failure
to make them before
or during the taking of
the deposition
Unless the ground of
the objection is one
U.P. LAW BOC
materiality
testimony
CIVIL PROCEDURE
of
Occurring at oral
examination
and
other particulars
Objection in the
manner of taking
the deposition, in
the
form
of
questions
or
answers, in the
oath
or
affirmation, or in
conduct of parties
and errors of any
kind which might
be obviated or
removed if promptly
prosecuted
Objections to the
form of written
interrogatories
under Sec. 25 and
26
In the manner in
which testimony
is transcribed or
the deposition is
dealt with by the
officer under Sec.
17, 19, 20, and 26
[Sec. 29, Rule 23]
which might have
been obviated or
removed if presented
at that time
Waived
Unless
reasonable
objection thereto is
made at the time of
taking the deposition
Waived
Unless served in
writing upon the party
propounding
them
within
the
time
allowed for serving
succeeding cross or
other interrogatories
and within 3 days after
service
of
last
interrogatories
authorized
Waived
Unless a motion to
suppress
the
deposition or some
part thereof is made
with
reasonable
promptness after such
defect is ascertained,
or with due diligence
might have been,
ascertained
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Orders of the court for the protection of
parties and deponents:
After notice is served for taking a deposition by
oral examination, upon motion by any party or
by the person to be examined, and for good
cause shown, the court may order that:
1. The deposition shall not be taken
2. It may be taken only at some designated
place other than that stated in the notice
3. It may be taken only on written
interrogatories
4. Certain matters shall not be inquired into
5. The scope of the examination shall be held
with no one present except the parties to
the action and their officers or counsel
6. After being sealed the deposition shall be
opened only by order of the court
7. Secret processes developments, or
research need not be disclosed
8. The parties shall simultaneously filed
specified documents or information
enclosed in sealed envelope to be opened
as directed by the court
9. The court may make any other order which
justice requires to protect the party or
witness from annoyance, embarrassment,
or oppression
[Sec. 16, Rule 23]
b. Written
Interrogatories
Adverse Parties
to
Purpose: To elicit material and relevant facts
from any adverse parties [Sec. 1, Rule 25]
and to assist the parties in clarifying the issues
and in ascertaining the facts involved in a case.
[Philippine Health Insurance Corp vs Our Lady
of Lourdes Hospital, G.R. No. 193158 (2015)]
Note: As compared to a bill of particulars
which is directed to a pleading and designed
to seek for a more definite statement or for
particulars in matters not availed with sufficient
definiteness in a pleading, interrogatories are
not directed against a particular pleading and
what is sought is the disclosure of all material
and relevant facts from a party. [1 Riano 447,
2016 Bantam Ed.]
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Written interrogatories to parties differ from
the written interrogatories in a deposition
since such are not served upon the adverse
party directly but rather on the officer
designated in the notice. [1 Riano 447, 2016
Bantam Ed.]
Scope and use: Interrogatories may relate to
any matters that can be inquired into under
Sec. 2 of Rule 23, and the answers may be
used for the same purposes provided in Sec. 4
of the same Rule [ Sec. 1, Rule 25]
Procedure for interrogatories to parties
1. Upon ex parte motion,
2. Any party desiring to elicit material and
relevant facts from any adverse parties,
3. Shall file and serve written interrogatories
on the party
4. Such are to be answered by:
a. the party served or,
b. if the party served is a public or private
corporation or a partnership or
association, by any officer thereof
competent to testify in its behalf. [Sec.
1, Rule 25]
Note: The interrogatories shall be answered
fully in writing and shall be signed and
sworn to by the person making them [Sec. 2,
Rule 25]
Number of interrogatories
No party may, without leave of court, serve
more than one set of interrogatories to be
answered by the same party [Sec. 4, Rule 25]
Answers as judicial admissions
Written interrogatories and the answers thereto
must both be filed and served. [Sec. 2, Rule 25]
The answers constitute judicial admissions.
[Sec. 4, Rule 129]
Service and filing
The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within 15 calendar days after
service thereof, unless the court, on motion
and for good cause shown, extends or
shortens the time. [Sec. 2, Rule 25]
Objections to interrogatories; answers
deferred
Objections to any interrogatories may be
presented to the court within 10 calendar
days after service thereof, with notice as in
case of a motion; and answers shall be
deferred until the objections are resolved,
which shall be at as early a time as is
practicable. [Sec. 3, Rule 25]
Grounds for objections
a. They require the statements of conclusions
of law or answers to hypothetical questions
or opinion, or mere hearsay, or matters not
within the personal knowledge of the
interrogated party.
b. Frivolous
interrogatories
need
be
answered
[2 Herrera 50, 2007 Ed.]
i. Consequences
Answer
of
Refusal
to
If a party or an officer or managing agent of a
party
fails
to
serve
answers
to
interrogatories submitted under Rule 25 after
proper service of such interrogatories, the court
on motion and notice, may:
1. Strike out all or any part of any pleading of
the party,
2. Dismiss the action or proceeding or any
part thereof, or
3. Enter a judgment by default against the
party, and
4. In its discretion, order him to pay
reasonable expenses incurred by the
other, including attorney’s fees.
Note: Such consequences also apply for willful
failure to appear before the officer who is to
take his deposition.
[Sec. 5, Rule 29]
ii. Effect of Failure to Serve Written
Interrogatories
General Rule: A party not served with written
interrogatories may not be compelled by
adverse party to:
1. Give testimony in open court; or
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2. Give a deposition pending appeal.
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i. Implied Admission by Adverse
Party
Exception: Allowed by the court for good
cause shown and to prevent a failure of justice.
[Sec. 6, Rule 25]
c. Request for Admission
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegations in a
pleading [1 Regalado 370, 2010 Ed.]
Purpose
In order to allow one party to request the
adverse party, in writing, to admit certain
material and relevant matters which, most
likely, will not be disputed during the trial. [1
Riano 448-449, 2016 Bantam Ed.]
In order to avoid unnecessary inconvenience
before trial, a party may request the other to:
a. Admit the genuineness of any material and
relevant document described in and
exhibited with the request, or
b. Admit the truth of any material and relevant
matter of fact set forth in the request. [Sec.
1, Rule 26]
How made
A party may file and serve upon any other
party a written request for the purpose
mentioned above. [Sec. 1, Rule 26]
Note: The request for admission must be
served on the party, not the counsel. This is
an exception to the general rule that notices
shall be served upon counsel and not upon the
party. [Duque v. CA, G.R. 125383 (2002)]
When made
At any time after issues have been joined. [Sec.
1, Rule 26]
Note: Issues are joined when all the parties
have pleaded their respective theories and the
terms of the dispute are plain before the court.
[Rosete v. Sps. Lim, G.R. No. 136051 (2006)]
Each of the matters which an admission is
requested shall be deemed admitted unless
the party to whom request is directed files and
serves upon the party requesting admission a
sworn statement. [Sec. 2, Rule 26]
Contents
1. Denying specifically the matters of which
an admission is requested, or
2. Setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters
[Sec. 2, Rule 26]
Period: Such party must file and serve such
statement:
1. Within a period not less than 15 calendar
days after service thereof, or
2. Within such further time as the court may
allow on motion
[Sec. 2, Rule 26]
Objections
Objections to any request for admission shall
be submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement.
• His compliance with the request for
admission shall be deferred until such
obligations are resolved, which resolution
shall be made as early as practicable. [Sec.
2, Rule 26]
ii. Consequences of Failure to
Answer Request for Admission
The proponent may apply to the proper court
for an order to compel an answer. [Sec. 1,
Rule 29]
If application is granted, the court
1. Shall require the refusing party to answer;
and
2. May require the refusing party or counsel
to pay reasonable expenses for obtaining
the order, if the court finds that the refusal
to answer was without substantial
justification.
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Effect of refusal to answer
Refusal to answer after being directed by the
court would:
a. Constitute contempt of that court. [Sec. 2,
Rule 29]
b. Allow the court to make such orders
regarding the refusal as are just, like:
1. An order that the matters regarding
which questions were asked shall be
taken as established for the purposes
of the action in accordance with the
claim of the party obtaining the order
2. An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses
3. An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing
the action or proceeding or any part
thereof or rendering a judgment by
default against the disobedient party,
and
4. In lieu of any of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of party
for disobeying any of such orders.
[Sec. 3, Rule 29]
iii. Effect of Admission
Any admission made by a party pursuant to
such request is for the purpose of the
pending action only and shall not constitute
an admission by him for any other purpose nor
may the same be used against him in any other
proceeding [Sec. 3, Rule 26]
Withdrawal of admission
The court may allow the party making the
admission under this Rule, to withdraw and
amend it upon such terms as may be just. [Sec.
4, Rule 26]
iv. Effect of Failure to File and Serve
Request for Admission
General Rule: A party who fails to file and
serve a request for admission on the adverse
party of material and relevant facts at issue
which are, or ought to be, within the personal
REMEDIAL LAW
knowledge of the latter, shall not be permitted
to present evidence on such facts.
Exception: Allowed by the court for good
cause shown and to prevent a failure of justice.
[Sec. 5, Rule 29]
d. Production or Inspection of
Documents or Things
Purpose
This mode of discovery is not only for the
benefit of a party, but also for the court and for
it to discover all the relevant and material facts
in connection with the case. [1 Riano 451, 2016
Edition]
Procedure for production/inspection of
documents or things
a. Upon motion of any party,
b. Showing good cause therefor,
c. The court in which an action is pending
may order any party to:
i.
Produce and permit the inspection and
copying or photographing, by or on
behalf of the moving party, of any
designated documents, papers,
books,
accounts,
letters,
photographs, objects or tangible
things
not
privileged,
which
constitute or contain evidence material
to any matter involved in the action and
which are in his possession custody or
control; or
ii.
Permit entry upon designated land or
other property in his possession or
control for the purpose of inspecting,
measuring,
surveying,
or
photographing the property or any
designated relevant object or operation
thereon
Note: The order shall specify the time, place
and manner of making the inspection and
taking copies and photographs, and may
prescribe such terms and conditions as are
just.
[Sec. 1, Rule 27]
Production/inspection of documents vs
Subpoena duces tecum
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Production or
inspection of
documents
CIVIL PROCEDURE
Subpoena duces
tecum
May be directed to
Limited to the parties
non- party [Sec. 1,
of the action [Sec. 1,
Rule 21 refers to “a
Rule 27]
person”]
Issued upon motion
May be issued upon
of any party [Sec. 1,
ex parte application
Rule 27]
Must show good Need not show good
cause [Sec. 1, Rule cause [see Secs. 3
27]
and 4, Rule 21]
Grounds for quashal
(1) Unreasonable,
oppressive,
May be quashed for irrelevant
lack of good cause
shown
(2)
Failure
to
advance reasonable
costs of production
[Sec. 4, Rule 21]
Disobedience would
allow court to make
such
orders
in
regard to the refusal
as are just, and
among others, an
order refusing to
Disobedience
allow the disobedient
constitutes contempt
party to support or
of court [Sec. 9, Rule
oppose designated
21]
claims or defenses
or prohibiting him
from introducing in
evidence designated
documents or things
or items of testimony
[Sec. 3(b), Rule 29]
e. Physical
and
Mental
Examination of Persons
When examination may be ordered
Such may be ordered in an action in which the
mental or physical condition of a party is in
controversy. [Sec. 1, Rule 28]
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Procedure
A motion for the examination is filed in the
court where the action is pending:
a. Showing good cause for the examination,
b. With notice to the party to be examined,
and to all other parties, and
c. Specifying the time, place, manner,
conditions, scope, and person conducting
the examination.
[Sec. 2, Rule 28]
Report of findings
A copy of the detailed examination report shall
be given by the party causing the examination
upon request by the party examined.
Note: The party causing the examination shall
then be entitled, upon request, to receive from
the party examined, a report of any
examination previously or subsequently made.
[Sec. 3, Rule 28]
Refusal to deliver the report
If the party examined refuses to deliver such
report, the court on motion and notice may
make an order requiring delivery on such
terms as are just
If a physician fails or refuses to make such a
report the court may exclude his testimony if
offered at the trial.
[Sec. 3, Rule 28]
Waiver of privilege
The party examined waives any privilege
regarding the testimony of every other person
who has examined or may thereafter examine
him in respect of the same mental/physical
examination by:
a. Requesting and obtaining a report of the
examination ordered, or
b. Taking the deposition of the examiner.
[Sec. 4, Rule 28]
Note: Since the results of the examination are
intended to be made public, the same are not
covered by physician-patient privilege under
Sec. 24(b), Rule 130 [1 Regalado 376, 2010
Ed.]
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f. Consequences of Refusal to
Comply
with
Modes
of
Discovery
Consequences of Refusal to Comply with
Modes of Discovery
Form of
Sanctions
refusal
Upon refusal to answer,
the proponent may apply
to the court for an order
to compel an answer.
Refusal to
answer any
question
If the application is
granted, the court shall
a. require the refusing
party or deponent to
answer the question
or interrogatory, and
b. if it also finds that the
refusal to answer was
without
substantial
justification, it may
require the refusing
party or deponent or
the counsel advising
the refusal, or both of
them, to pay the
proponent the amount
of the reasonable
expenses incurred in
obtaining the order,
including attorney’s
fees.
REMEDIAL LAW
incurred in opposing the
application,
including
attorney’s fees.
[Sec. 1, Rule 29]
Refusal to be
sworn
Refusal to
answer
designated
questions or
refusal to
produce
documents or
to submit to
physical or
mental
examination
If the application is
denied and the court
finds that it was filed
without
substantial
justification, the court may
require the proponent or
the counsel advising the
filing of the application, or
both of them, to pay to the
refusing
party
or
deponent the amount of
the reasonable expenses
Page 102 of 525
The refusal may be
considered a contempt of
that court. [Sec. 2, Rule
29]
The refusal may be
considered a contempt of
that court. [Sec. 2, Rule
29]
The court may make such
orders in regard to the
refusal as are just, and
among
others
the
following
a. An order that the
matters regarding
which the questions
were asked, or the
character or
description of the
thing or land, or the
contents of the paper,
or the physical or
mental condition of
the party or any other
designated facts shall
be taken to be
established for the
purposes of the
action in accordance
with the claim of the
party obtaining the
order;
b. An order refusing to
allow the disobedient
party to support or
oppose designated
claims or defenses or
prohibiting him from
introducing in
evidence designated
documents or things
or items of testimony,
or from introducing
U.P. LAW BOC
Refusal to
admit under
Rule 26
Failure of
party to attend
or serve
REMEDIAL LAW
CIVIL PROCEDURE
evidence of physical
or mental condition;
c. An order striking out
pleadings or parts
thereof, or staying
further proceedings
until the order is
obeyed, or dismissing
the action or
proceeding or any
part thereof or
rendering a judgment
by default against the
disobedient party;
and
d. In lieu of any of the
foregoing orders or in
addition thereto, an
order directing the
arrest of any party or
agent of party for
disobeying any of
such orders except
an order to submit to
a physical or mental
examination.
[Sec. 3, Rule 29]
The court, upon proper
application, may issue an
order requiring the other
party
to
pay
him
reasonable
expenses
incurred,
including
attorney’s
fees
PROVIDED that party
requesting
proves
genuineness of such
document or truth
UNLESS the court finds:
a. There were good
reasons for
denial, or
b. Admissions
sought were of no
importance.
[Sec. 4, Rule 29]
The court on motion and
notice may”
answers to
written
interrogatories
[Sec. 5]
a. Strike out all or any
part of any pleading of
disobedient party,
b. Dismiss the action or
proceeding or any
part thereof, or
c. Enter a judgment by
default
against
disobedient
party,
and
d. d. In its discretion,
order payment of
reasonable expenses
incurred by the other
including attorney’s
fees.
Note: Expenses and attorney’s fees are not to
be imposed upon the Republic of the
Philippines under Rule 29. [Sec. 6, Rule 29]
15.
TRIAL
Definition
Trial is the judicial examination and
determination of the issues between the parties
to the action. [Black’s Law Dictionary 1348, 5th
Ed.]
The judicial process of investigating and
determining the legal controversies, starting
with the production of evidence by the plaintiff
and ending with his closing argument. [Acosta
v. People, G.R. No. L-17427 (1962)]
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo, G.R. No. L-35701 (1973)]
When trial unnecessary
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
1. Where the pleadings tender no issue at all,
judgment on the pleadings may be
directed by the court [Rule 34]
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2. Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment [Rule 35]
3. Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial is
in progress [Rule 18; Art. 2028, Civil Code]
4. Where the complaint has been dismissed
with prejudice, or when the dismissal has
the effect of an adjudication on the merits
[Sec. 13, Rule 15; Sec. 3, Rule 17; Sec. 5,
last par., Rule 7]
5. Where the case falls under the Rules on
Summary Procedure, and
6. Where the parties agree, in writing, upon
the facts involved in the litigation and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence [Sec. 7, Rule 30]
[1 Riano 563, 2014 Bantam Ed.]
Schedule of Trial
The parties shall strictly observe the scheduled
hearings as agreed upon and set forth in the
pre-trial order. [Sec. 1, Rule 30]
Trial dates
The schedule of trial dates shall be continuous
and within the following periods:
a. Initial presentation of plaintiff’s evidence
• Shall be set not later than 30 calendar
days after termination of pre-trial
conference
• Plaintiff shall be allowed to present
evidence within a period of 3 months or
90 calendar days which shall include
the date of JDR.
b. Initial
presentation
of
defendant’s
evidence
• Shall be set not later than 30 calendar
days after the court’s ruling on
plaintiff’s formal offer of evidence.
• Defendant shall be allowed to present
evidence within a period of 3 months or
90 calendar days.
c. The period for presentation of evidence on
the third (fourth-etc.)- party claim,
counterclaim, or cross-claim shall be
determined by the court.
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•
The total of which shall in no case
exceed 90 calendar days.
d. If deemed necessary, the court shall set
the presentation of the parties’ rebuttal
evidence
• Shall be completed within 30 calendar
days.
[Sec. 1, Rule 30]
Periods for presentation of evidence
General Rule: The presentation of evidence of
all parties shall be terminated within 10
months or 300 calendar days.
Exception: If there are no third (fourth-etc.)party claim, counterclaim, or cross-claim, the
presentation of evidence shall be terminated
within 6 months or 180 calendar days.
Note: Trial dates may be shortened depending
on the number of witnesses to be presented.
[Sec. 1, Rule 30]
Period of decision
The court shall decide and serve copies of its
decision to the parties within a period not
exceeding 90 calendar days from submission
of the case for resolution, with or without
memoranda. [Sec. 1, Rule 30]
Hearing days
Trial shall be held from Monday to Thursday.
• Courts shall call the cases at exactly
8:30am and 2:00pm pursuant to A.C.
No. 3-99.
• Hearing on the motions shall be held on
Fridays pursuant to Sec. 8, Rule 15.
[Sec. 4, Rule 30]
Court calendars
All courts shall ensure the posting of their court
calendars outside their courtrooms at least 1
day before the scheduled hearings. [Sec. 4,
Rule 30]
a. Adjournments
Postponements
and
A court may adjourn a trial from day to day,
and to any stated time, as the expeditious and
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convenient transaction of
require. [Sec. 2, Rule 30]
CIVIL PROCEDURE
business
REMEDIAL LAW
may
ii. For Illness of Party or Counsel
Note: The party who caused the postponement
is warned that presentation of its evidence
must be terminated on the remaining dates
previously agreed upon.
Limitations on the authority to adjourn
General rule: The court has no power to
adjourn a trial for a period longer than 1 month
for each adjournment; nor more than 3
months in all.
Exception: When authorized in writing by the
Court Administrator, Supreme Court.
[Sec. 2, Rule 30]
Motion to postpone trial based on illness of a
party or counsel may be granted if
accompanied by affidavit or sworn
certification showing:
1. The presence of such party or counsel at
the trial is indispensable; and
2. That the character of his or her illness is
such as to render his non-attendance
excusable
[Sec. 3, Rule 30]
Note: Such ground for postponement of trial
was initially under Section 4 of the same rule.
c. Agreed Statement of Facts
Postponement
A motion for postponement should not be filed
in the last hour especially when there is no
reason why it could not have been presented
earlier. [Cañete v. Judge, CFI Zamboanga del
Sur, G.R. No. L-21743 (1968)]
Postponements lie in the court’s discretion.
[Hap Hong Hardware Co., Inc. v. Philippine
Milling Company, G.R. No. L-16778 (1961)]
b. Requisites
of
Postpone Trial
Motion
to
i. For Absence of Evidence
Under the Old Rules, specifically Sec. 3 of Rule
30, postponement of trial for absence of
evidence was allowed provided that the motion
for such was accompanied by an affidavit
showing the materiality/ relevance of the
evidence and that due diligence has been used
to procure it. Under the revised rules, however,
such section has been deleted, meaning that
absence of evidence can no longer be used
as a basis for postponement of trial.
Under Sec. 12(f), Rule 15, postponement may
only be allowed due to acts of god, force
majeure, or physical inability of the witness to
appear and testify. The amended Sec. 3 of
Rule 30 also provides for an additional ground
which is illness of a party or counsel.
When all facts are agreed upon
The parties may agree, in writing, upon the
facts involved in the litigation, and submit the
case for judgment on the facts agreed upon,
without the introduction of evidence.
When only some facts are agreed upon
If the parties agree only on some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
[Sec. 7, Rule 30]
An agreed statement of facts is conclusive
on the parties, as well as on the court. Neither
of the parties may withdraw from the
agreement, nor may the court ignore the same.
[McGuire v. Manufactures Life, G.R. L-3581
(1950)]
d. Order of Trial; Reversal of Order
Order of trial
General Rule: Trial shall be limited to the
issues stated in the pre-trial order and proceed
as follows:
a. Presentation of plaintiff’s evidence in chief
b. Presentation of defendant’s evidence in
chief and evidence in support of his
counterclaim, cross-claim and 3rd-party
complaint
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c. 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
d. 4th-party defendant shall adduce evidence,
and so forth
e. Parties against whom any counterclaim or
cross-claim has been pleaded shall adduce
evidence in support of their defense, in the
order to be prescribed by court
f. Parties may then respectively adduce
rebutting evidence only, unless the court
permits them to adduce evidence upon
their original case
g. Upon admission of the evidence, the case
shall be submitted for decision, unless the
court directs parties to argue or to submit
respective memoranda or any further
pleading
Note: Such is subject to the provisions of Sec.
2, Rule 31 on separate trials.
Exception: When the court for special reasons
otherwise directs.
[Sec. 5, Rule 30]
Reverse order
Where the answer of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses. [Yu v. Mapayo,
G.R. No. L- 29742 (1972)]
The reasoning behind this is that the plaintiff
need not present evidence since judicial
admissions do not require proof [Sec. 2, Rule
129]
Offer of exhibits
After the presentation of evidence, the offer of
exhibits shall be made orally. The objections
shall then be made, and the court shall orally
rule on the same. [Sec 6, Rule 30]
Note: This is consistent with the rule on
continuous trial for criminal cases, as well as
the amendments to the Rules of Court.
REMEDIAL LAW
e. Consolidation or Severance of
Hearing or Trial
Consolidation is a procedural device, granted
to the court as an aid in deciding how cases in
its docket are to be tried, so that the business
of the court may be dispatched expeditiously
while providing justice to the parties. [Republic
v. Heirs of Oribello, G.R. No. 199501 (2013)]
When proper: When actions involving a
common question of fact or law are pending
before the court. [Sec. 1, Rule 31]
Court action
The court may
a. Order a joint hearing or trial of any or all
matters in issue in the actions
b. Order all actions consolidated; and
c. Make such orders concerning proceedings
therein as may tend to avoid unnecessary
costs or delay.
[Sec. 1, Rule 31]
Purpose: To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unnecessary costs and
expenses. [1 Regalado 392, 2010 Ed.]
Where a case has been partially tried before
one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan, G.R. No. 102370-71 (1992)]
The Rules do not distinguish between
cases filed before the same branch or judge
and those that are pending in different
branches or before different judges of the
same court, in order that consolidation may be
proper, as long as the cases involve the
resolution of questions of law or facts in
common with each other. [Active Woods
Products Co. Inc. v. CA, G.R. No. 86602
(1990)]
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Kinds of consolidation
a. Quasi-consolidation – where all, except
one, of several actions are stayed until one
is tried, in which case, the judgment in the
one trial is conclusive as to others; not
actually consolidation but referred to as
such
b. Actual consolidation – where several
actions are combined into one, lose their
separate identity, and become one single
action in which judgment is rendered
c. Consolidation for Trial – where several
actions are ordered to be tried together, but
each retains its separate character, and
requires the entry of separate judgment
[Republic v. Sandiganbayan, G.R. No. 152375
(2011)]
Severance
The court may order a separate trial of any
claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue. [Sec. 2,
Rule 31]
When proper: In furtherance of convenience
or to avoid prejudice. [Sec. 2, Rule 31]
When a separate trial of claims is conducted by
the court under this section, it may render
separate judgments on each claim. [see Sec.
5, Rule 36]
This provision permitting separate trials
presupposes that the claims involved are
within the jurisdiction of the court. When
one of the claims is not within its jurisdiction,
the same should be dismissed, so that it may
be filed in the proper court. [1 Regalado 394,
2010 Ed.]
f. Delegation
Evidence
of
Reception
of
General Rule: The judge of the court where
the case is pending shall personally receive
the evidence to be adduced by the parties [Sec.
9, Rule 30]
Exception: The court may delegate the
reception of evidence to its COC in:
a. Default hearings
REMEDIAL LAW
b. Ex parte hearings, or
c. Cases where parties agree in writing.
Note: In order to be able to receive evidence,
the clerk of court must be a member of the
bar. [Sec. 9, Rule 30]
Objections
The COC has no power to rule on objections
to any question or to the admission of exhibits.
Objections shall be resolved by the court
upon submission of the clerk’s report and the
TSN within 10 calendar days from termination
of the hearing. [Sec. 9, Rule 30]
g. Trial by Commissioners
Commissioner - A person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered [Secs.1, 3, 9,
11, Rule 32]
Note: as used in the Rules, “commissioner”
includes a referee, an auditor, and an
examiner. [Sec. 1, Rule 32]
General Rule: Trial by commissioner depends
largely upon the discretion of the court. [Secs.
1-2, Rule 32]
Exceptions: In the following instances,
appointment of a commissioner is necessary:
a. Expropriation [Rule 67]
b. Partition [Rule 69]
Kinds of trial by commissioners
a. Reference by consent of both parties
b. Reference ordered on motion
[Secs. 1-2, Rule 32]
i. Reference by Consent or Ordered
on Motion
Reference by consent
The court may order any or all of the issues in
a case to be referred to a commissioner by
written consent of both parties. [Sec. 1, Rule
32]
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Commissioners are to be:
1. Agreed upon by the parties; or
2. Appointed by the court. [Sec. 1, Rule 32]
Reference ordered on motion
When the parties do not consent, the court
may, upon the application of either or of its own
motion direct a reference to a commissioner in
the following cases:
1. When the trial of an issue of fact requires
the examination of a long account on
either side, in which case the
commissioner may be directed to hear and
report upon the whole issue or any specific
question involved therein,
2. When the taking of an account is
necessary for the information of the court
before judgment, or for carrying a judgment
or order into effect,
3. When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
[Sec. 2, Rule 32]
Order of reference
When a reference is made, the clerk shall
furnish the commissioner with a copy of the
order of reference, which may contain the
following:
1. Specifications or limitations of the powers
of the commissioner;
2. A direction to report only upon particular
issues, to do or perform particular acts, or
to receive and report evidence only; and
3. The date for beginning and closing the
hearings, and that for the filing of his report.
[Sec. 3, Rule 32]
ii. Powers of The Commissioner
REMEDIAL LAW
a. Regulate the proceedings in every hearing
before him;
b. Do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order;
c. Issue subpoenas and subpoenas duces
tecum;
d. Swear witnesses; and
e. Unless otherwise provided in the order of
reference, he may rule upon the
admissibility of evidence.
[Sec. 3, Rule 32]
Note: Refusal of a witness to obey such
subpoena or to give evidence before him is
deemed contempt of the court which appointed
the commissioner. [Sec. 7, Rule 32]
Proceedings before the commissioner
a. Upon receipt of the order of reference, the
commissioner shall set a time and place for
the first meeting of parties or their counsel;
b. Notices shall be sent to parties or counsel;
and
c. Hearing is to be held within 10 calendar
days after the date of order of reference.
[Sec. 5, Rule 32]
Note: The commissioner has the duty to
proceed with reasonable diligence. The parties
may apply to the court for an order requiring the
commissioner to expedite proceedings and
submit his report. [Sec. 8, Rule 32]
Effect of party’s failure to appear
The commissioner may, in his discretion,
a. Proceed ex parte; or
b. Adjourn the proceedings to a future date
giving notice to the absent party or his
counsel.
[Sec. 6, Rule 32]
Oath of commissioner
Before entering upon his duties, the
commissioner shall be sworn to a faithful and
honest performance thereof. [Sec. 4, Rule 32]
a. Commissioner’s Report; Notice to Parties
and Hearing on The Report
Powers of the commissioner
Subject to the limitations and specifications in
the order, the commissioner has and shall
exercise the power to:
Report of the commissioner
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall
file with the court his report in writing upon
the matters submitted to him by the order of
reference.
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Note: The commissioner shall attach all
exhibits, affidavits, depositions, papers and the
transcripts, if any, of the testimonial evidence
presented before him.
[Sec. 9, Rule 32]
Notice and objections
Upon the filing of the report, the parties shall be
1. Notified by the clerk; and
2. Allowed 10 calendar days within which to
object to the findings of the report, if they
so desire
[Sec. 10, Rule 32]
Note: The objections based upon grounds
which were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and conclusions,
shall not be considered by the court unless
they were made before the commissioner.
[Sec. 10, Rule 32]
Hearing upon the report
Upon the expiration of the 10-day period to file
objections, the report shall be set for
hearing. After such hearing, the court shall
issue an order:
1. Adopting, modifying, or rejecting the report,
in whole or in part, or
2. Recommitting it with instructions, or
3. Requiring the parties to present further
evidence before the commissioner or the
court.
[Sec. 11, Rule 32]
16.
DEMURRER TO EVIDENCE
Demurrer to evidence
After the plaintiff has completed the
presentation of his evidence, the defendant
may move for dismissal on the ground that
upon the facts and the law the plaintiff has
shown no right to relief. [Sec. 1, Rule 33]
a. Ground
Insufficiency of evidence, that upon the facts
and the law the plaintiff has shown no right
to relief. [Sec. 1, Rule 33]
REMEDIAL LAW
b. Effect of Denial
If the demurrer is denied, the defendant shall
have the right to present his evidence. [Sec.
1, Rule 33]
The order denying the demurrer to evidence
shall not be the subject of an appeal or petition
for certiorari, prohibition or mandamus before
judgment. [Sec. 2, Rule 33]
Note: The remedy then is to proceed to trial,
and if the defendant loses, to appeal the
judgment and include in the assigned errors,
the denial of the demurrer to evidence.
c. Effect of Grant
If the demurrer is granted, the case shall be
dismissed. [Sec. 1, Rule 33]
Note: The grant of a demurrer is considered an
adjudication on the merits and the proper
remedy would be to appeal the judgment.
The appellate court should not remand the
case for further proceedings but should render
judgment on the basis of the evidence
submitted by the plaintiff. [Consolidated Bank
and Trust Corp. v. Del Monte Motor Works,
Inc., G.R. No. 143338 (2005)]
d. Waiver of Right to Present
Evidence
If the order granting the demurrer is
reversed on appeal, the defendant is deemed
to have waived his right to present evidence.
[Sec. 1, Rule 33; Republic v. Tuvera, G.R. No.
148246 (2007)]
e. Action
on
Evidence
Demurrer
to
A demurrer to evidence shall be subject to the
provisions of Rule 15. [Sec. 2, Rule 33]
Being subject to the provisions of Rule 15, it
follows that a demurrer to evidence is
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considered an allowable litigious motion. Rule
15 requires that there must be proof of service
to the other party who shall have 5 calendar
days to file an opposition. The court shall
then resolve the motion within 15 calendar
days from the receipt of such opposition.
f. Distinguish:
Demurrer
to
Evidence in a Civil Case and
Demurrer to Evidence in a
Criminal Case
Demurrer in
CIVIL CASE
Anchored upon the
failure
of
the
plaintiff to show that
he is entitled to
relief, upon the facts
and the law. [Sec. 1,
Rule 33]
Demurrer in
CRIMINAL CASE
Predicated
upon
prosecution’s
insufficiency
of
evidence. [Sec. 23,
Rule 119]
May be filed with or
without leave of
court [Sec. 23, Rule
119]
If the defense filed
the demurrer with
leave of court, the
defense
may
present evidence
upon
denial
of
demurrer.
If the demurrer is
denied, the defendant
does not lose his right
to
present
his
evidence.
When
without
leave of court and
the demurrer is
denied, the defense
is deemed to have
waived the right to
present evidence
and thus submits
the
case
for
judgment on the
basis of evidence
offered
by
the
prosecution.
If the demurrer is
granted, the plaintiff
may appeal and if the
dismissal is reversed,
the
defendant
is
deemed to have
waived his right to
present his evidence.
REMEDIAL LAW
No
appeal
is
allowed when a
demurrer is granted
because
the
dismissal
is
deemed
an
acquittal. [People v.
Tan,
G.R.
No.
167526 (2010)]
It is the defendant
who
invokes
demurrer by moving
for the dismissal of
the case.
The court may, on
its own initiative,
may dismiss the
action after giving
the prosecution an
The court does not do opportunity to be
so
on
its
own heard.
initiative.
[Riano 498, Criminal Procedure, 2016 Ed.]
17. JUDGMENTS AND FINAL
ORDERS
Judgments in general
The final ruling by a court of competent
jurisdiction regarding the rights and obligations
of the parties, or other matters submitted to it
in an action or proceeding. [Macahilig v. Heirs
of Magalit, G.R. No. 141423 (2000)]
Requisites of a valid judgment
1. Court or tribunal must be clothed with
authority to hear and determine the matter
before it. [Acosta v. COMELEC, G.R. No.
131488 (1998)]
2. Court must have jurisdiction over the
parties and the subject matter
3. Parties must have been given an
opportunity to adduce evidence on their
behalf. [Acosta v. COMELEC, G.R. No.
131488 (1998)]
4. Evidence must have been considered by
the tribunal in deciding the case. [Acosta v.
COMELEC, G.R. No. 131488 (1998)]
5. Judgment must be in writing, personally
and directly prepared by the judge. [Corpus
v. Sandiganbayan, G.R. No. 162214
(2004)]
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6. Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the clerk
of court. [Sec. 1, Rule 36; Sec. 14, Art VIII,
1987 Constitution]
KINDS OF JUDGMENT
1. Judgment by compromise – Rendered
on the basis of a compromise agreement
entered into between the parties to the
action. [1 Riano 606, 2014 Bantam Ed.,
Diamond Builders Conglomeration v.
Country Bankers Corp., G.R. No. 171820
(2007)]. Once approved by the court, a
judicial compromise is not appealable and
it thereby becomes immediately executory
[1 Riano 607, 2014 Bantam Ed.]
2. Judgment by confession (cognovit
actionem) – Rendered by the court when
a party expressly agrees to the other
party’s claim or acknowledges the validity
of the claim against him. [1 Riano 609,
2014 Bantam Ed., see also PNB v. Manila
Oil, G.R. No. 18103 (1922)]
3. Judgment upon the merits – Rendered
after consideration of the evidence
submitted by the parties during the trial of
the case. A judgment is “on the merits”
when it amounts to a legal declaration of
the respective rights and duties of the
parties, based upon the disclosed facts.
4. Clarificatory judgment – Rendered where
the previous judgment is ambiguous and
difficult to comply with. [1 Regalado 417,
2010 Ed., citing Almendras v. Del Rosario,
G.R. No. L-20158 (1968)]
5. Judgment nunc pro tunc – Literally, “now
for then”. It is a judgment intended to enter
into the record the acts which had already
been done, but which do not appear in the
records [Lichauco v. Tan Pho, G.R. No.
19512 (1923)]. It can only be issued when
the thing ordered has previously been
made, but by inadvertence has not been
entered. [Vasquez v. CA, G.R. No. 144882
(2005)]
6. Judgment sin perjuicio – Traditionally
understood to be a brief judgment
containing only the dispositive portion.
[Director of Lands v. Sanz, G.R. No. 21183
(1923)]
REMEDIAL LAW
7. Conditional Judgment – One whose
effectivity depends upon the occurrence or
non-occurrence of an event; generally void
because of the absence of a disposition.
[Cu- Unjieng v. Mabalacat Sugar Co., G.R.
No. 45351 (1940)]
8. Several Judgments – Rendered by a
court against one or more defendants and
not against all of them, leaving the action to
proceed against the others [Sec. 4, Rule
36]. A several judgment is proper where
the liability of each party is clearly
separable and distinct from that of his coparties such that the claims against each of
them could have been the subject of
separate suits, and judgment for or against
one of them will not necessarily affect the
others. In actions against solidary debtors,
a several judgment is not proper [1
Regalado 424, 2010 Ed.].
9. Separate Judgment – Rendered to
dispose of a claim among several others
presented in a case, after a determination
of the issues material to a particular claim
and all counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Sec. 5, Rule
36]
10. Memorandum Decision – Rendered by
an appellate court, and incorporates by
reference the findings of fact or the
conclusions of law contained in the
decision, order or ruling under review. [1
Riano 581, 2014 Bantam Ed.]
11. Declaratory Judgment – Rendered in a
special civil action for declaratory relief.
[Rule 63]
12. Foreign Judgment – Rendered by a
tribunal of a foreign country. [Sec 48, Rule
39]
a. Judgment After Pre-trial
When the court includes in the pre-trial order
that the case be submitted for summary
judgment or judgment on the pleadings,
judgment shall be rendered within 90 calendar
days from termination of pre-trial. [Sec. 10,
Rule 18]
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Note: The court may order such motu proprio
or upon motion of any party and upon a
showing that:
a. There be no more controverted facts,
b. No more genuine issue as to any material
fact,
c. There be an absence of any issue, or
d. Should the answer fail to tender an issue.
[Sec. 10, Rule 18]
b. Judgment Without Trial
When trial is unnecessary:
1. Judgment on the Pleadings [Rule 34]
2. Summary Judgment [Rule 35]
3. Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule
18; Art. 2028, Civil Code]
4. Dismissal with prejudice [Sec. 13, Rule 15;
Secs. 3 and 5, Rule 17]
5. Under the Rules on Summary Procedure
6. When there is an agreed statement of facts
[Sec. 7, Rule 30]
REMEDIAL LAW
From the reference to Rule 15, it follows that a
motion for a judgment on the pleadings is
considered an allowable litigious motion. As
such, there must be proof of service to the
other party who shall have 5 calendar days to
file an opposition. From receipt of such, the
court shall have 15 calendar days to resolve
the motion.
Note: Any action of the court on a motion for
judgment on the pleadings shall not be subject
of an appeal or petition for certiorari, prohibition
or mandamus. [Sec. 2, Rule 34]
Judgment on the pleadings is not proper in the
ff. cases:
a. Declaration of Nullity of Marriage;
b. Annulment of marriage; and
c. Legal Separation.
Note: In such cases, the material facts alleged
in the complaint shall always be proved.
[Sec. 1, Rule 34]
d. Summary Judgments
c. Judgment on The Pleadings
When a judgment on the pleadings may be
availed of
The court may, motu proprio or on motion of
that party, direct judgment on such pleading
when the answer:
a. Fails to tender an issue, or
b. Admits the material allegations of the
adverse party’s pleading. [Sec. 1 and 2,
Rule 34]
Note: The concept will not apply when no
answer is filed. It will come into operation when
an answer is served and filed but the same fails
to tender an issue, or admits the material
allegations of the adverse party’s pleading. [1
Riano 609, 2014 Bantam Ed.] When no answer
is filed, the remedy is to move that the
defendant be declared in default. [Sec. 3, Rule
9]
When availed of by motion of a party
The motion shall be subject to the provisions of
Rule 15. [Sec. 2, Rule 34]
Definition
A judgment which a court may render before
trial, but after both parties have pleaded
upon application by one party supported by
affidavits, depositions, or other documents,
with notice upon the adverse party who may file
an opposition supported also by affidavits,
depositions or other documents, should the
court find after summarily hearing both parties
with their respective proofs that there exists
no genuine issue between them. [2 Herrera
118, 2007 Ed., citing Evangelista v. Mercator
Financing Corporation, G.R. No. 148864
(2003)]
Summary Judgment is proper when it
appears to the court that
a. There exists no genuine issue as to any
material fact, except as to the amount of
damages, and
b. The moving party is entitled to judgment
as a matter of law.
Genuine issue - an issue of fact which calls for
the presentation of evidence as distinguished
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from a sham, fictitious, contrived, or false claim
[Philippine Bank of Communications v. Go,
G.R. No. 175514 (2011)]
Test: Whether or not the pleadings, affidavits
and exhibits in support of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of law,
that there is no defense to the action, or the
claim is clearly meritorious. [Estrada v.
Consolacion, G.R. No. L- 40948 (1976)]
i. For the Claimant;
Defendant
REMEDIAL LAW
CIVIL PROCEDURE
For
the
When filed
1. If sought by the claimant – only after the
answer is served; [Sec. 1, Rule 35]
2. If sought by the defendant – at any time
[Sec. 2, Rule 35]
Procedure
1. Movant files a motion for summary
judgment, citing the supporting affidavits,
depositions, or admissions, and the
specific law relied upon.
2. The adverse party may file a comment and
serve opposing affidavits, depositions,
admissions within 5 calendar days from
receipt of the motion.
3. A hearing will be conducted only if ordered
by the court
- Note: There is no longer a mandatory
hearing for the motion due to the
amendment of the rules. This is also
consistent with the amendments to
Rule 15.
4. Court renders summary judgment.
Note: Any action of the court on a motion for
summary judgment shall not be subject of an
appeal or petition for certiorari, prohibition or
mandamus.
[Sec. 3, Rule 35]
Note: Damages must still be proven even if not
denied. Note language of Sec. 3, Rule 35,
“except as to the amount of damages.”
b. Depositions
c. Admissions
[Secs. 1-2, Rule 35]
ii. When the
Adjudicated
Case
Not
Fully
Partial summary judgment – applies when for
some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Duty of the court [Sec. 4, Rule 35]
If on motion for summary judgment, judgment
is not rendered upon the whole case or for all
the reliefs sought and a trial is necessary, the
court may:
1. Ascertain which material facts exist without
substantial controversy and the extent to
which the amount of damages and other
reliefs is not in controversy by
a. Examining the pleadings and evidence
before it; and
b. Interrogating counsel
2. Make an order which:
a. Specifies which facts ascertained are
deemed established, and
b. Directs further proceedings as are just
3. Conduct trial on the controverted facts
Effect: A partial summary judgment is not a
final judgment, but merely a pre-trial
adjudication that said issues in the case shall
be deemed established for the trial of the case.
[Guevarra v. CA, G.R. No. L-49017 (1983)]
iii. Affidavits and Attachments
Form
1. Made on personal knowledge
2. Setting forth such facts as would be
admissible in evidence
3. Showing affirmatively that the affiant is
competent to testify to the matters stated
therein
4. Certified true copies of all papers or parts
thereof referenced in the affidavit shall be
attached or served with the affidavit
[Sec. 5, Rule 35]
Bases for summary judgment
a. Affidavits
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Affidavits in bad faith [Sec. 6, Rule 35] –
those presented under this Rule which appear
to the court at any time as presented in bad
faith or solely for the purpose of delay.
Effect of affidavits in bad faith
The court:
1. Shall order the offending party or counsel
to pay the other party the amount of
reasonable expenses which the filing of the
affidavits caused him to incur; and
2. May, after hearing, adjudge the offending
party or counsel guilty of contempt. [Sec. 6,
Rule 35]
e. Distinguish: Judgment on the
Pleadings
and
Summary
Judgments
Summary
judgment
[Rule 35]
Judgment on the
pleadings
[Rule 34]
Absence of a factual
Involves an issue, issue in the case
but the issue is not because the answer
genuine.
tenders no issue at
all.
Motion for summary
Motion for judgment
judgment may be
on the pleadings is
filed by either the
filed by a claiming
claiming
or
the
party like a plaintiff or
defending
party.
a counterclaimant.
[Secs. 1-2]
[Sec. 1]
May be ordered
May be ordered motu
motu proprio by the
proprio by the court.
court. [Sec. 10, Rule
[Sec. 10, Rule 18]
18]
Based
on
the
Based
on
the
pleadings, affidavits,
pleadings
alone
depositions
and
[Sec. 1]
admissions [Sec. 3]
[1 Riano 614-615, 2014 Bantam Ed.]
REMEDIAL LAW
i. Contents of a Judgment
Form of judgment or final order determining
the merits of the case
a. In writing,
b. Personally and directly prepared by the
judge,
c. Stating clearly & distinctly the facts and the
law on which it is based,
d. Signed by the judge, and
e. Filed with the clerk of court.
[Sec. 1, Rule 36]
Parts of a judgment
a. The opinion of the court – contains the
findings of fact and conclusions of law
b. The disposition of the case – the final and
actual disposition of the rights litigated (the
dispositive part)
c. Signature of the judge
[2 Herrera 155, 2007 Ed.]
Parts of a decision
In general, the essential parts of a good
decision consist of the following:
a. Statement of the case,
b. Statement of facts,
c. Issues or assignment of errors,
d. Court ruling, in which each issue is, as a
rule, separately considered and resolved,
and
e. Dispositive portion.
The ponente may also opt to include an
introduction or a prologue as well as an
epilogue, especially in cases in which
controversial or novel issues are involved.
[Velarde v. Social Justice Society, G.R. No.
159357 (2004)]
Distinction between judgment and the
opinion of the court
a. Judgment of the court
b. Opinion of the court - The informal
expression of the views of the court and
cannot prevail against its final order or
decision. They are not the judgment itself.
Note: While the two may be combined in
one instrument, the opinion forms no part
of the judgment.
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REMEDIAL LAW
c. Findings and conclusion of a court While they may constitute its decision and
amount to a rendition of a judgment, they
are not the judgment itself. They amount to
nothing more than an order for judgment,
which, of course, must be distinguished
from the judgment.
[Casilan v. Salcedo, G.R. No. L-23247 (1969),
citing 1 Freeman on Judgments 6, 5th Ed.]
Period for rendition
a. All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
b. Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower courts.
[Sec. 15, Art. VIII, Constitution,]
Conflict between disposition and opinion of
the court
General rule: The general rule is that where
there is conflict between the dispositive portion
or the fallo and the body of the decision, the
fallo controls.
Note: This Rule applies only when the
dispositive part is definite, clear, and
unequivocal. [Union Bank v. Pacific Equipment
Corporation, G.R. No. 172053 (2008)]
A case is deemed submitted for resolution
upon the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court. [Sec. 15, Art. VIII, Constitution]
Exception: Where the inevitable conclusion
from the body of the decision is that there was
a mistake in the dispositive portion, the body of
the decision will prevail. [Rosales v. CA, G.R.
No. 137566 (2001)]
See again “sin perjuicio” judgments above
f. Rendition of Judgments and
Final Orders
Rendition of judgment
Pronouncement of the judgment in open court
does not constitute rendition of judgment. It is
the filing of the signed decision with the
COC that constitutes rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has
not yet been filed with the COC. [Ago v. CA,
G.R. No. L-17898 (1962)]
Promulgation of judgment
Promulgation is the process by which a
decision is published, officially announced,
made known to the public or delivered to the
COC for filing, coupled with notice to the parties
or their counsel. [2 Herrera 151, 2007 Ed.,
Neria v. Commissioner of Immigration, G.R.
No. L-24800 (1968)]
An extension of the period may be set by the
SC upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse. Without an extension, a
delay in the disposition of cases is tantamount
to gross inefficiency on the part of the judge.
[Arap v. Mustafa, SCC-01-7 (2002)]
i. Entry of Judgment and Final Order
Entry of judgment
The entry of judgment refers to the physical
act performed by the clerk of court in
entering the dispositive portion of the judgment
in the book of entries of judgment after the
same has become final and executory. [1
Riano 615, 2014 Bantam Ed.]
When entered: If no appeal, or motion for new
trial or reconsideration is filed within the time
provided in the Rules, the judgment or final
order shall forthwith be entered by the clerk in
the book of entries of judgments [Sec. 2, Rule
36]
Note: The date of finality of the judgment or
final order shall be deemed to be the date of its
entry. [Sec. 2, Rule 36] This is regardless of the
date when the physical act of entry was done.
[1 Riano 615, 2014 Bantam Ed.]
Contents of record in the book of entries:
a. Dispositive part of the judgment or final
order
b. Signature of the clerk; and
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c. Certification that such judgment or final
order has become final and executory.
[Sec. 2, Rule 36]
Final judgment rule
General rule: Once a decision or order
becomes final and executory, it is removed
from the power or jurisdiction of the court which
rendered it to further alter or amend it. [Siliman
University v. Fontelo-Paalan, G.R. No. 170948
(2007)]
Under the doctrine of immutability of
judgments, a judgment that has attained
finality can no longer be disturbed. The reason
is two-fold:
a. To avoid delay in the administration of
justice, and to make orderly the discharge
of judicial business; and
b. To put an end to judicial controversies at
the expense of occasional errors.
[1 Riano 538-539, 2011 Ed.]
Exceptions:
a. Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa, G.R.
No. 167332 (2011)]
b. Nunc pro tunc entries [Filipinas Palmoil
Processing, Inc. v. Dejapa, G.R. No.
167332 (2011)]
c. Whenever circumstances transpire after
finality of the decision, rendering its
execution unjust and inequitable [Apo
Fruits Corp. v. Land Bank of the Phils.,
G.R. No. 164195 (2010)]
d. In cases of special and exceptional nature,
when it is necessary in the interest of
justice to direct modification in order to
harmonize the disposition with the
prevailing circumstances [Industrial Timber
Corp. v. Ababon, G.R. No.164518 (2006)]
e. In case of void judgments [FGU Insurance
v. RTC Makati, G.R. No. 161282 (2011)]
f. Where there is a strong showing that a
grave injustice would result from an
application of the Rules [Almuete v.
People, G.R. No. 179611 (2013)]
g. When there are grounds for annulment of
judgment or petition for relief [Gochan v.
Mancao, G.R. No. 182314 (2013)]
REMEDIAL LAW
Amended/clarified
Supplemental
judgment
decision
An entirely new Does not take the
decision
and place of or extinguish
supersedes
the the
original
original judgment.
judgment.
Court
makes
a
thorough study of
the original judgment
and renders the
amended
and Serves to add to the
clarified
judgment original judgment.
only
after
considering all the
factual and legal
issues.
[1 Regalado 418, 2010 Ed.]
18. POST-JUDGMENT
REMEDIES
Remedies before finality of judgment
1. Motion for new trial [Rule 37]
2. Motion for reconsideration [Rule 37]
3. Appeal [Rules 40-45]
[1 Riano 60, 2011 Ed.]
a. Motion for New
Reconsideration
Trial
or
Note: The motion for reconsideration (MR)
under Rule 37 is directed against a judgment
or final order. It does not refer to one for
interlocutory orders, which often precedes a
petition for certiorari under Rule 65. [1 Riano
558, 2011 Ed.]
These motions are prohibited in cases covered
by the Rule on Summary Procedure [Sec. 19]
and those falling under the Rules of Procedure
on Small Claims Cases [Sec. 16].
Grounds
[Sec. 1,
Rule 37]
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MNT
1. Fraud,
accident,
mistake,
or
excusable
MR
1. Damages
awarded
are
excessive
U.P. LAW BOC
negligence
(FAME)
2. Newly
discovered
evidence
Second
MNT/MR
[Sec. 5,
Rule 37]
Effect if
granted
A 2nd MNT
may
be
allowed
if
based on a
ground
not
existing
or
available when
the 1st MNT
was made.
The
original
judgment
or
final
order
shall
be
vacated, and
the action shall
stand for trial
de novo; but
the recorded
evidence shall
be used in the
new
trial
without
retaking
the
same. [Sec. 6,
Rule 37]
CIVIL PROCEDURE
2. That the
evidence is
insufficient
to justify
the
decision or
final order
3. That the
decision or
final order
is contrary
to law
A 2nd MR of a
judgment
or
final order is
not allowed.
Note:
This
prohibition
does not apply
to interlocutory
orders.
(b) By reason of which such aggrieved
party has probably been impaired in his
rights.
2. Newly discovered evidence
(a) It was discovered after the trial, or
(b) It could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence; and
(c) The evidence is of such weight that if
admitted, would probably alter the
result of the action; and
(d) It must be material and not merely
collateral, cumulative, or
corroborative.
[Sec. 1, Rule 37]
[FAME]
Ground
Fraud
The court may
amend
the
judgment
or
final
order
accordingly if
the
ground
relied
upon
prevails.
[Sec. 3, Rule
37]
REMEDIAL LAW
Mistake
Definition
The fraud must be extrinsic.
• Any fraudulent scheme
executed outside of the
trial by the prevailing party
against the losing party,
who, because of such
fraud, is prevented from
presenting his side of the
case, or judgment was
procured
without
fair
submission
of
the
controversy.
It may either be a mistake of
fact or mistake of law made in
good faith by the defendant
who was misled in the case.
It must be one that is imputable
to the party.
Excusable
negligence
i. Grounds
Grounds for Motion for New Trial (MNT)
One or more of the following causes materially
affecting the substantial rights of said party:
1. Fraud, accident, mistake or excusable
negligence (FAME)
(a) Ordinary prudence could not have
guarded against, and
Note: The negligence of
counsel is binding on the client
except if it was so great as to
prejudice the client and prevent
fair presentation of the case.
[1 Regalado, 2010 Ed.]
Note: A motion for reopening the trial is
different from a motion for new trial—the
latter can only be done after promulgation of
judgment whereas the former may properly be
presented after either or both parties have
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formally offered and closed their evidence
before judgment. [1 Regalado 432, 2010 Ed.]
Grounds for Motion for Reconsideration
1. Damages awarded are excessive;
2. Evidence is insufficient to justify the
decision or final order; or
3. Decision or final order is contrary to law.
[Sec. 1, Rule 37]
Note: If the MR is based on the same grounds
as that for a MNT, it is considered a MNT.
[Rodriguez v. Rovira, G.R. No. 45252 (1936)]
ii. When to File; Form
Within the period for taking an appeal [Sec. 1,
Rule 37]
See Period of appeal below.
Note: An MNT and MR may only be availed of
by a party to the proceeding. [Alaban vs CA,
G.R. No. 156021 (2005)]
Contents
The motion shall be:
a. Made in writing,
b. Stating the ground or grounds therefor, and
c. A written notice of which shall be served by
the movant on the adverse party.
An MNT shall be proved in the manner
provided for proof of motions.
a. A motion based on FAME - supported by
affidavits of merits which may be rebutted
by affidavits.
b. A motion based on newly-discovered
evidence - supported by affidavits of the
witnesses by whom such evidence is
expected to be given, or by duly
authenticated documents which are
proposed to be introduced in evidence.
When MNT based on FAME
accompanied by affidavit of merits
General rule: Denied
not
Exceptions:
1. The court has no jurisdiction over the
defendant/ subject matter, so the judgment
is null and void
REMEDIAL LAW
2. The judgment is defective as where a
judgment by default was rendered even
before the reglementary period to answer
had expired.
3. The defendant was deprived of his day
in court as when no notice of hearing was
furnished him
[1 Regalado 435, 2010 Ed.]
A MR shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by the evidence or
which are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged to
be contrary to such findings or conclusions.
Note: A pro forma MNT/MR shall not toll the
reglementary period of appeal.
[Sec. 2, Rule 37]
When MNT considered pro forma
1. Based on the same ground raised in
preceding MNT/MR already denied;
2. Contains the same arguments and manner
of discussion in the prior opposition to a
motion to dismiss which was granted;
3. The new ground alleged in the 2nd MNT
was available and could have been alleged
in the first MNT which was denied;
4. Based on the ground of insufficiency of
evidence/that the judgment is contrary to
law, but does not specify the supposed
defects in judgment; or
5. Based on FAME but does not specify the
facts constituting these grounds and/or is
not accompanied by an affidavit of merits.
[1 Regalado 193, 2010 Ed.]
Single-motion rule [Sec. 5, Rule 37]
Motion for New Trial
An MNT shall include all grounds then
available and those not so included shall be
deemed waived.
• A 2nd MNT, based on a ground not
existing nor available when the first
motion was made, may be filed within the
time herein provided excluding the time
during which the first motion had been
pending.
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Motion for Reconsideration
A 2nd motion for reconsideration of a judgment
or final order is not allowed.
Court action
The trial court may:
1. (MNT) Set aside the judgment or final order
and grant a new trial, upon such terms as
may be just
2. (MR) Amend such judgment or final order
accordingly if the court finds that
a. Excessive damages have been
awarded or that, or
b. Judgment or final order is contrary to
the evidence or law
3. Deny the motion
[Sec. 3, Rule 37]
Court resolution
The motion shall be resolved within 30 days
from the time it is submitted for resolution. [Sec.
4, Rule 37]
Note: The 30-day period to resolve the motion
is mandatory. [Gonzales v. Bantolo, A.M. No.
RTJ-06-1993 (2006)]
REMEDIAL LAW
The court may amend such judgment or final
order. [Sec. 3, Rule 37]
Partial grant of new trial or reconsideration
If the grounds for a motion under this Rule
appear to the court to affect:
1. The issues as to only a part, or
2. Less than all of the matter in controversy,
or
3. Only one, or less than all, of the parties to
it,
the court may order a new trial or grant
reconsideration as to such issues if
severable without interfering with the judgment
or final order upon the rest. [Sec. 7, Rule 37]
Partial new trial; effect
When less than all of the issues are ordered
retried, the court may either
1. Enter a judgment or final order as to the
rest, or
2. Stay the enforcement of such judgment or
final order until after the new trial.
[Sec. 8, Rule 37]
v. Remedy When Motion is Denied,
Fresh 15-day Period Rule
iii. Denial of the Motion; Effect
An order denying a MNT or MR is not
appealable.
The remedy is an appeal from the judgment or
final order. [Sec 9, Rule 37]
Note: The order denying the motion may itself
be assailed by a petition for certiorari under
Rule 65. [1 Regalado 437, 2010 Ed.]
15-day period to file the notice of appeal
The SC has allowed a fresh period of 15 days
within which to file the notice of appeal in the
RTC, counted from receipt of the order
dismissing a MNT/MR.
- The fresh period of 15 days becomes
significant only when a party opts to file
a motion for new trial or motion for
reconsideration.
[Neypes v. CA, G.R. No. 141524 (2005)]
iv. Grant of the Motion; Effect
Grant of MNT
The original judgment or final order shall be
vacated, and the action shall stand for trial de
novo;
Note: The recorded evidence taken upon the
former trial, insofar as the same is material and
competent to establish the issues, shall be
used at the new trial without retaking the same.
[Sec. 6, Rule 37]
Grant of MR
Note: What is appealed is the judgment
itself, not the order denying the MNT/MR.
[Sec. 9, Rule 37]
b. Appeals in General
Nature
a. The right to appeal is not a constitutional,
natural, or inherent right.
b. It is a statutory privilege and of statutory
origin and is available only if granted or if
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so provided by statute. [Yu vs SamsonTatad, 642 SCRA 421 (2011)]
c. As a rule, the perfection of an appeal in the
manner and within the period prescribed by
law is not only mandatory, but
jurisdictional. A failure to comply with the
rules of appeal will render the judgment
final and executory. [Landbank of the
Philippines vs CA, G.R. No. 221636
(2016)]
Appeal vs. Action to review
An appeal is different from an action to review.
In an appeal, the court by which the first
determination was made is not a party to the
proceeding for review whereas in an action for
review, the court which made the
determination is a party to the proceeding for
review [1 Regalado 556, 2010 Ed.]
Harmless error rule in appellate decisions
No error in either the admission or the
exclusion of evidence and no error or defect in
any ruling or order or in anything done or
omitted by the trial court or by any of the parties
is ground for granting a new trial or for
setting aside, modifying, or otherwise
disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. [Sec. 6,
Rule 51]
The court at every stage of the proceeding
must disregard any error or defect which
does not affect the substantial rights of the
parties. [Sec. 6, Rule 51]
We have likewise followed the harmless error
rule in our jurisdiction. In dealing with
evidence improperly admitted in trial, we
examine its damaging quality and its impact to
the substantive rights of the litigant. If the
impact is slight and insignificant, we disregard
the error as it will not overcome the weight of
the properly admitted evidence against the
prejudiced party. [People v. Teehankee, G.R.
Nos. 111206-08 (1995)]
i. Judgments and
Subject to Appeal
Final
Orders
REMEDIAL LAW
An appeal may be taken from a judgment or
final order that completely disposes of the
case, or of a particular matter therein when
declared by the ROC to be appealable [Sec. 1,
Rule 41]
Note: Not every judgment or final order is
appealable. An example of judgments or final
orders which do not completely dispose of a
case and are, hence, not appealable are
several and separate judgments provided for
under Secs. 4 and 5 of Rule 36.
ii. Matters Not Appealable
1. An order denying a petition for relief or any
similar motion seeking relief from
judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an
appeal;
4. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom; and
7. An order dismissing an action without
prejudice.
[Sec. 1, Rule 41, as amended by A.M. No. 077-12-SC]
Final order v. Interlocutory order
Final Order
Interlocutory Order
One
that
finally One that determines
disposes of a case, incidental
matters
leaving nothing more that does not touch
to be done by the on the merits of the
Court in respect case or put an end to
thereto.
the
proceedings.
[Investments, Inc. v. [Silverio
Jr.
v.
CA, G.R. No. L- Filipino
Business
60036 (1987)]
Consultants,
Inc.,
Page 120 of 525
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G.R. No.
(2005)]
143312
REMEDIAL LAW
4. Petition for review on certiorari – Rule 45
Proper remedy to
question
an
improvident
interlocutory order is
Subject to appeal
a
petition
for
[Investments, Inc. v.
certiorari under Rule
CA, G.R. No. L65 [Silverio Jr. v.
60036 (1987)]
Filipino
Business
Consultants,
Inc.,
G.R. No. 143312
(2005)]
Not
considered
Must express clearly decisions
or
and distinctly the judgments within the
facts and the law on constitutional
which it is based. definition [1 Riano
[Sec. 14, Art. VIII, 581, 2014 Bantam
Constitution]
Ed., citing Amargo v.
CA, G.R. No.
[Pahila-Garrido v Tortogo, G.R. No. 156358
(2011)]
Effect of an appeal from an interlocutory
order
If an order appealed from is interlocutory, the
appellate court can dismiss the appeal even if
the appellee did not file any objection. [1
Regalado 552, 2010 Ed.]
iii. Remedy Against Judgments and
Orders Which Are Not Appealable
In those instances where the judgment or final
order is not appealable, the aggrieved party
may file the appropriate special civil action
under Rule 65. [Sec. 1, Rule 41]
iv. Modes of Appeal
1. Ordinary appeal – Rule 40 and 41
a. Notice of appeal
b. Record on appeal
2. Petition for review – Rule 42
3. Appeal from quasi-judicial agencies (QJAs)
to the CA – Rule 43
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Modes of Appeal
Rule
Mode
of
appeal
How
made
Ordinary
Appeal
Rule 41
Petition for
Review
Rule 42
Case decided
by RTC in
exercise
of
original
jurisdiction.
[Sec. 2(a)]
Case decided
by
RTC
in
exercise
of
appellate
jurisdiction.
[Sec. 2(b), Rule
41]
Notice
of
appeal/Record
on appeal with
the CA [Sec.
2(a)]
Petition
for
review with the
CA [Sec. 2(b),
Rule 41]
Filing a notice
of appeal with
the
court
which
rendered the
judgment
or
final
order
appealed from
and serving a
copy thereof
upon
the
adverse party
If required, the
record-on
appeal shall
be filed and
served in like
manner [Sec.
2]
File a verified
petition
for
review with the
CA, paying at
the same time to
the clerk of said
court
the
corresponding
docket
and
other
lawful
fees, depositing
the amount of
PHP 500.00 for
costs,
and
furnishing the
RTC and the
adverse party
with a copy of
the
petition
[Sec. 1]
Appeals from
QJAs to the CA
Rule 43
Awards, judgments,
final
orders
or
resolutions of or
authorized by any
QJA in the exercise
of its quasi-judicial
functions. [Sec. 1]
Petition for Review
by Certiorari
Rule 45
Case where only
questions of law are
raised or involved.
[Sec. 2(c), Rule 41]
EXCEPT:
Judgments or final
orders issued under
the Labor Code.
[Sec. 2]
Appeal by certiorari
from a judgment or
final
order
or
resolution of the CA,
the Sandiganbayan,
the RTC or other
courts
whenever
authorized by law.
[Sec. 1]
Verified petition for
review with the CA
[Sec. 5]
Petition for review on
certiorari with the SC
[Sec. 2(c), Rule 41]
File a verified petition
for review in 7 legible
copies with the CA,
with proof of service
of a copy thereof on
the adverse party
and on the court or
agency a quo. The
original copy of the
petition intended for
the CA shall be
indicated as such by
the petitioner.
File verified petition
for
review
on
certiorari with the SC
[Sec. 1]
Upon the filing of the
petition,
the
petitioner shall pay to
the COC of the CA
the docketing and
other lawful fees and
deposit the sum of
PHP 500.00 for costs
Page 122 of 525
Petitioner shall pay
the corresponding
docket and other
lawful fees to the
COC of the SC and
deposit the amount
of PHP 500.00 for
costs at the time of
the filing of the
petition. Proof of
service of a copy
thereof on the lower
court concerned and
on the adverse party
shall be submitted
together with the
petition [Sec. 3]
U.P. LAW BOC
Within 15 days
from notice of
the judgment
or final order
appealed from
Period
of
appeal
Where
a
record
of
appeal
is
required, file a
notice
of
appeal and a
record
on
appeal within
30 days from
notice of the
judgment
or
final order
[Sec. 3]
REMEDIAL LAW
CIVIL PROCEDURE
Within 15 days
from notice of
1. The
decision
sought to
be reviewed
or
2. The denial
of
petitioner’s
MNT or MR
filed in due
time after
judgment
[Sec. 1]
v. Issues to Be Raised on Appeal
Issues
Issues that have not been raised before the
lower courts cannot be raised on the first time
on appeal. [Spouses Erorita vs Spouses
Dumlao, G.R. No. 195477 (2016)]
Errors
General Rule: The appellate court shall
consider no error unless stated in the
assignment of errors. [Sec. 8, Rule 51]
Exceptions: The court may consider an error
not raised on appeal provided that it is an error:
1. That affects the jurisdiction over the subject
matter,
2. That affects validity of the judgment
appealed from,
3. Which affects the validity of the
proceedings,
4. That is closely related to or dependent to
an assigned error, and properly argued in
brief,
[Sec.5]
Within 15 days from:
1. Notice of the
award,
judgment, final
order or
resolution, or
2. The date of
i. its last
publication, if
publication is
required by
law for its
effectivity, or
ii. the denial of
petitioner’s
MNT or MR
duly filed in
accordance
with the
governing law
of the court or
agency a quo
[Sec. 4]
Within 15 days from
notice of
1. The judgment or
final order or
resolution
appealed from,
or
2. The denial of the
petitioner’s MNT
or MR filed in
due time after
notice of the
judgment
[Sec. 2]
5. That is a plain clerical error,
6. Of which consideration is necessary to
arrive at a just decision and complete
resolution of the case or serve the interests
of justice, or
7. Raised in the trial court and are matters of
record having such bearing on the issue
submitted which the parties failed to raise
or which the lower court.
[1 Riano 529-530, 2016 Ed.]
The appellate court has no jurisdiction to
review a judgment which is immediately final
and executory by express provision of law.
[Republic v. Bermudez-Lorino, G.R. No.
160258 (2005)]
vi. Period of Appeal
The fresh period rule shall apply to:
1. Rule 40 governing appeals from the MTCs
to the RTCs
2. Rule 41 governing appeals from the RTCs
to CA
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U.P. LAW BOC
CIVIL PROCEDURE
3. Rule 42 on petitions for review from the
RTCs to the CA
4. Rule 43 on appeals from quasi-judicial
agencies to the CA, and
5. Rule 45 governing appeals by certiorari to
the SC
Note: The fresh period rule gives the appellant
a fresh 15-day period within which to make his
appeal from the order denying the MNT, MR,
or any final order or resolution.
The new rule aims to regiment or make the
appeal period uniform, to be counted from
receipt of the order denying the MNT, MR
(whether full or partial) or any final order or
resolution [Neypes v. CA, G.R. No. 141524
(2005)]
vii. Perfection of Appeal
Perfection of an appeal in the manner and
within the period laid down by law is
mandatory and jurisdictional [Balgami v. CA,
G.R. No. 131287 (2004)]
Effect of failure to perfect appeal
a. Defeats a party’s right to appeal, and
b. Precludes appellate court from acquiring
jurisdiction.
[1 Riano 20, 2011 Ed.]
Dismissal, Reinstatement, And Withdrawal
of Appeal
Grounds for dismissal of appeal
1. Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by the ROC
2. Failure to file the notice of appeal or the
record on appeal within the period
prescribed by the ROC
3. Failure of the appellant to pay the docket
and other lawful fees as provided in Sec. 4,
Rule 41
4. Unauthorized alterations, omissions or
additions in the approved record on appeal
as provided in Sec. 4 of Rule 44
5. Failure of the appellant to serve and file the
required number of copies of his brief or
REMEDIAL LAW
memorandum within the time provided by
the ROC
6. Absence of specific assignment of errors in
the appellant’s brief, or of page references
to the record as required in Sec. 13(a), (c),
(d) and (f) of Rule 44
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives
of the court without justifiable cause, and
9. The fact that order or judgment appealed
from is not appealable
[Sec. 1, Rule 50]
10. Appeal under Rule 41 taken from the RTC
to the CA raising only questions of law
11. Appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a RTC
[Sec. 2, Rule 50]
Other grounds
1. By agreement of the parties (i.e. amicable
settlement)
2. Where appealed case has become moot or
academic
3. Where appeal is frivolous or dilatory
[1 Regalado 644-645, 2010 Ed.]
Withdrawal of appeal
1. An appeal may be with­drawn as a matter
of right at any time before the filing of the
appellee’s brief.
2. Thereafter, the withdrawal may be allowed
in the discretion of the court.
[Sec. 3, Rule 50]
Dismissal by the SC
The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
1. Failure to take the appeal within the
reglementary period
2. Lack of merit in the petition
3. Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs
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U.P. LAW BOC
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4. Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition
5. Failure to comply with any circular,
directive or order of the SC without
justifiable cause
6. Error in the choice or mode of appeal, and
7. The fact that the case is not appealable to
the SC.
[Sec. 5, Rule 56]
viii. Appeal from Judgments or Final
Orders of The Metropolitan Trial
Courts/ Municipal Trial Courts/
Municipal Trial Courts In Cities/
Municipal Circuit Trial Courts
Procedure [Rule 40]
File a notice of appeal with the court that
rendered the judgment or final order
appealed from [Sec. 3]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the
appellate court docket and other lawful fees
[Sec. 5]
↓
Within 15 days from the perfection of the
appeal, the COC or the branch COC of the
lower court shall transmit the original record
or the record on appeal, together with the
transcripts and exhibits, which he shall
certify as complete, to the proper RTC. A
copy of his letter of transmittal of the records
to the appellate court shall be furnished the
parties [Sec. 6]
↓
Upon receipt of the complete record or the
record on appeal, the COC of the RTC shall
notify the parties of such fact [Sec. 7(a)]
↓
Within 15 days from such notice, it shall be
the duty of the appellant to submit a
memorandum which shall briefly discuss the
errors imputed to the lower court, a copy of
which shall be furnished by him to the
REMEDIAL LAW
adverse party. Failure of the appellant to file
a memorandum shall be a ground for
dismissal of the appeal [Sec. 7(b)]
↓
Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum [Sec. 7(c)]
↓
Upon the filing of the memorandum of the
appellee, or the expiration of the period to do
so, the case shall be considered submitted
for decision. The RTC shall decide the case
on the basis of the entire record of the
proceedings had in the court of origin and
such memoranda as are filed [Sec. 7(d)]
Where taken
To the RTC exercising jurisdiction over the
area to which the former pertains. [Sec. 1, Rule
40]
When taken
1. Within 15 days after notice to the appellant
of the judgment or final order appealed
from.
2. Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days after
notice of the judgment or final order.
3. The period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration. No motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed.
[Sec. 2, Rule 40]
Extension of period to appeal
Period to appeal may be extended but such
extension is addressed to the sound discretion
of the court. [Socco v. Garcia, G.R. No. L18231 (1962)]
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How taken
By notice of appeal
1. File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
• indicating the parties to the appeal, the
judgment or final order or part thereof
appealed from, and state the material
dates showing the timeliness of the
appeal.
2. Copies of the notice of appeal shall be
served on the adverse party.
[Sec. 3, Rule 40]
3. Pay to the COC which rendered the
judgment or final order appealed from the
full amount of the appellate court docket
and other lawful fees. [Sec. 5, Rule 40]
By record on appeal
1. File a notice of appeal [Sec. 2, Rule 41]
following the steps above.
2. The form and contents of the record on
appeal shall be as provided in Sec. 6, Rule
41. (see appeals from judgments or final
orders of the RTC)
3. Copies of the notice of appeal, and the
record on appeal where required, shall be
served on the adverse party.
[Sec. 3, Rule 40]
4. Pay to the COC which rendered the
judgment or final order appealed from the
full amount of the appellate court docket
and other lawful fees. [Sec. 5, Rule 40]
Note: Record on appeal shall be required only
in:
1. Special proceedings
2. In such other cases of multiple or separate
appeals
[Sec. 2, Rule 41]
Perfection of appeal
The perfection of the appeal and the effect
thereof shall be governed by the provisions of
Sec. 9, Rule 41. [Sec. 4, Rule 40]
See appeals from judgments or final orders of
the RTC.
REMEDIAL LAW
Two Scenarios
1. If an appeal is taken from an order of the
lower court dismissing the case without
a trial on the merits
a. The RTC may affirm or reverse it, as
the case may be
b. In case of affirmance and the ground
of dismissal is lack of jurisdiction
over the subject matter, the RTC, if it
has jurisdiction thereover, shall try the
case on the merits as if the case was
originally filed with it
c. In case of reversal, the case shall be
remanded for further proceedings
2. If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the RTC on appeal shall
not dismiss the case if it has original
jurisdiction thereof, but shall decide the
case in accordance with Sec. 7, Rule 40,
without prejudice to the admission of
amended pleadings and additional
evidence in the interest of justice
[Sec. 8, Rule 40]
Applicability of Rule 41
The other provisions of Rule 41 shall apply to
appeals provided for herein insofar as they are
not inconsistent with or may serve to
supplement the provisions of Rule 40. [Sec. 9,
Rule 40]
ix. Appeal from Judgments or Final
Orders of The Regional Trial
Courts
RULE 41
Appeal from the RTC to the CA via Rule 41
presupposes that
1. The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its original
jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
[1 Regalado 555, 2010 Ed.]
Appeal from order dismissing a case
without trial; lack of jurisdiction
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NOTICE OF APPEAL
Contents
1. Parties to the appeal
2. Judgment or final order or part thereof
appealed from
3. Court to which the appeal is being taken,
and
4. Material dates showing the timeliness of
the appeal
[Sec. 5, Rule 41]
RECORD ON APPEAL
General Rule: No record on appeal shall be
required
Exception: In special proceedings and other
cases of multiple or separate appeals where
the law or the ROC so require.
• In such cases, the record on appeal shall
be filed and served in like manner. [Sec.
2(a), Rule 41]
Contents of the record on appeal
1. Full names of all the parties to the
proceedings shall be stated in the caption
of the record on appeal
2. The judgment or final order from which the
appeal is taken and,
3. In chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue involved,
4. Together with such data as will show that
the appeal was perfected on time.
[Sec. 6, Rule 41]
Note: The requirement that the record on
appeal must show on its face that the
appeal was perfected on time is mandatory
and jurisdictional that if not complied with, the
appeal must be dismissed. [1 Regalado 563,
2010 Ed.]
Exception: If the trial court issued an order to
the effect that the appeal was seasonably
perfected with the filing of the notice of appeal
and the record on appeal within the
reglementary period. [Pimentel v. CA, G.R. No.
L-39684 (1975)]
REMEDIAL LAW
If an issue of fact is to be raised on appeal,
the record on appeal shall include by
reference all the evidence taken upon the issue
involved.
1. The reference shall specify the
a. Documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at
the hearing, and
b. Testimonial evidence by the names of
the corresponding witnesses
2. If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits.
3. Every record on appeal exceeding 20
pages must contain a subject index.
[Sec. 6, Rule 41]
Approval of the record on appeal
1. Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within 5 days from receipt of a
copy thereof, the trial court may:
a. Approve it as presented or upon its
own motion, or
b. At the instance of the appellee, may
direct its amendment
• by the inclusion of any omitted
matters which are deemed
essential to the determination of
the issue of law or fact involved in
the appeal.
2. If the trial court orders the amendment
of the record, the appellant, within the time
limited in the order, or such extension
thereof as may be granted, or if no time is
fixed by the order within 10 days from
receipt thereof, shall:
a. Redraft the record by including therein,
in their proper chronological sequence,
such additional matters as the court
may have directed him to incorporate,
and
b. Submit the redrafted record for
approval, upon notice to the appellee,
in like manner as the original draft.
[Sec. 7, Rule 41]
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Joint record on appeal
Where both parties are appellants, they may
file a joint record on appeal within 30 days from
notice of judgment or final order, or that fixed
by the court. [Secs. 3 and 8, Rule 41]
Period to appeal
1. Within 15 days from notice of judgment or
final order appealed from
2. Within 30 days from notice of judgment or
final order where a record on appeal is
required
3. Within 48 hours from notice of judgment or
final order appealed from in habeas corpus
cases
[Sec. 3, Rule 41]
Note: If a MNT/MR was properly filed but the
motion was ultimately dismissed, a fresh
period of 15 days within which to file the notice
of appeal in the RTC, counted from receipt of
the order dismissing the motion is granted.
[Neypes v. CA, G.R. No. 141524 (2005)]
Reckoning point of reglementary period
Period for filing the appeal should be
counted from the date when the party’s counsel
received a copy of the judgment or final order
because that is the effective service of the
decision. When a party is represented by
counsel, service of process must be made on
counsel, not on the party. [Fajardo v. CA, G.R.
No. 140356 (2001); Sec. 2, Rule 13]
Note: The mere filing and pendency of motion
for extension to perfect appeal does not
suspend the running of the reglementary
period. [King v. Corro, G.R. No. L-23617
(1967)]
Extension of period to appeal
The period to appeal may be extended but
such extension is addressed to the sound
discretion of the court. [Gregorio v. CA, G.R.
No. L-43511 (1976)]
Note: If the trial court approves the record
on appeal even if the period for the appeal
has expired, this is tantamount to a valid order
granting the extension prayed for by the
appellant if any such motion has been filed
REMEDIAL LAW
[Berkenkotter v. CA, G.R. No. L-36629 (1973)]
Conversely, dismissal constitutes a denial of
the extension prayed for, in which case the only
question that can arise is whether the trial court
had gravely abused its discretion in denying
such extension. [PVTA v. Delos Angeles, G.R.
No. L-29736, (1974)]
Pleadings to be filed
1. Appellant’s brief
2. Appellee's brief
3. Appellant’s reply brief
Appellant’s brief
It shall be the duty of the appellant to file with
the court, within 45 days from receipt of the
notice of the clerk that all the evidence, oral and
documentary, are attached to the record, 7
copies
of
his
legibly
typewritten,
mimeographed or printed brief, with proof of
service of 2 copies thereof upon the appellee.
[Sec. 7, Rule 44]
Note: Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one original
(properly marked) and 2 copies with their
annexes with the CA.
Grounds for dismissal with respect to
appellant’s brief:
1. Failure of the appellant to serve and file the
required number of copies of his brief within
the time provided by the ROC, or
2. Absence of specific assignment of errors in
the appellant’s brief.
[Sec. 1(e)-(f), Rule 50]
Contents
1. Subject index
2. Assignment of errors
3. Statement of the Case
4. Statement of Facts
5. Statement of issues
6. Arguments
7. Relief
8. Copy of judgment or final order appealed
from [Sec. 13, Rule 44]
Appellee’s brief
Within 45 days from receipt of the appellant’s
brief, the appellee shall file with the court 7
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copies
of
his
legibly
typewritten,
mimeographed or printed brief, with proof of
service of 2 copies thereof upon the appellant.
[Sec. 8, Rule 44]
Note: Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one original
(properly marked) and 2 copies with their
annexes with the CA.
Contents
1. Subject index
2. Statement of Facts or Counter-Statement
of Facts
3. Argument
[Sec. 14, Rule 44]
Appellant’s reply brief
Within 20 days from receipt of the appellee’s
brief, the appellant may file a reply brief
answering points in the appellee’s brief not
covered in his main brief. [Sec. 9, Rule 44]
Extension of time for filing briefs:
General rule: Not allowed
Exception: Good and sufficient cause, and
only if the motion for extension is filed before
the expiration of the time sought to be
extended.
[Sec. 12, Rule 44]
Payment of docket fees
1. Within the period for taking an appeal, the
appellant shall pay to the clerk of the
court which rendered the judgment or final
order appealed from, the full amount of the
appellate court docket and other lawful
fees.
2. Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.
[Sec. 4, Rule 41]
Note: Payment of docket fees in full is
mandatory and is a condition sine qua non
for the perfection of an appeal. Subsequent
payment of appellate docket fees does not cure
the defect of the appeal because payment is a
jurisdictional requirement. [Santander v
Villanueva, G.R. No. L-6184 (1958)]
REMEDIAL LAW
Perfection of appeal
1. A party’s appeal by notice of appeal is
deemed perfected as to him upon the filing
of the notice of appeal in due time.
2. A party’s appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the
approval of the record on appeal filed in
due time.
[Sec. 9, Rule 41]
Note: An appellant who fails to perfect his
appeal on time due to FAME may file for a
petition for relief under Sec. 2, Rule 38. If his
petition for relief is denied, he can file a petition
under Rule 65, since the denial of a petition for
relief is no longer appealable under Sec. 1 of
Rule 41 [De Luna v. Palacio, G.R. No. L-26927
(1969)]
Effect of perfected appeal
1. In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties.
2. In appeals by record on appeal, the court
loses jurisdiction only over the subject
matter thereof upon the approval of the
records on appeal filed in due time and the
expiration of the time to appeal of the other
parties.
[Sec. 9, Rule 41]
Residual powers/jurisdiction of the RTC
In either case, prior to the transmittal of the
original record or the record on appeal, the
court may
1. Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39, and
5. Allow withdrawal of the appeal
[Sec. 9, Rule 41]
Note: There is no residual jurisdiction to speak
of where no appeal or petition has even been
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filed. [Fernandez v. CA, G.R. No. 131094
(2005)]
Duty of clerk upon perfection of appeal
1. Within 30 days after perfection of all the
appeals in accordance with the preceding
section, it shall be the duty of the COC of
the lower court:
a. To verify the correctness of the original
record or the record on appeal and to
make a certification of its correctness,
b. To verify the completeness of the
records that will be transmitted to the
appellate court,
c. If found to be incomplete, to take such
measures as may be required to
complete the records, availing of the
authority that he or the court may
exercise for this purpose; and
d. To transmit the records to the appellate
court
2. If the efforts to complete the records fail, he
shall indicate in his letter of transmittal
the exhibits or transcripts not included in
the records being transmitted to the
appellate court, the reasons for their nontransmittal, and the steps taken or that
could be taken to have them available.
3. The COC shall furnish the parties with
copies of his letter of transmittal of the
records to the appellate court.
[Sec. 10, Rule 41]
Note: Even if the appeal has already been
perfected but the records have not yet been
transmitted to the appellate court, the trial
court still has jurisdiction to set aside its order
approving the record on appeal. [Cabungcal v.
Fernandez, G.R. No. L-16520 (1964)]
Dismissal of appeal
Prior to the transmittal of the original record or
the record on appeal to the appellate court, the
trial court may motu proprio or on motion
dismiss the appeal for:
1. Having been taken out of time, or
2. Non-payment of the docket and other
lawful fees within the reglementary period.
[Sec. 13, Rule 41]
REMEDIAL LAW
RULE 42
Petition for review from the RTC to the CA
Appeal via Rule 42 is proper when one appeals
from a decision of the RTC in the exercise of its
appellate jurisdiction. It may be taken on
either questions of fact, questions of law, or on
mixed questions of fact and law. [Macawiwili
Gold Mining and Development Co., Inc. v. CA,
G.R. No. 115104 (1998)]
This mode of appeal is not a matter of right
but is a matter of discretion on the part of the
CA, on whether or not to entertain the appeal
[1 Regalado 581, 2010 Ed.]
Note: Since Rule 42 is a petition for the
purpose of appeal and not petitions in original
actions, lower courts/judges that rendered
the judgment complained of are not
impleaded as parties in the appeal. [1
Regalado 579, 2010 Ed.]
How taken
If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
1. File a verified petition for review with the
CA
a. Within 15 days from notice of judgment
or final order, or
b. Within 15 days from notice of denial of
petitioner’s MNT or MR
2. Pay at the same time to the clerk of the CA
the corresponding docket and other
lawful fees,
3. Deposit PHP 500.00 for costs, and
4. Furnish the RTC and the adverse party with
a copy of the petition.
[Sec. 1, Rule 42]
Period to appeal
The petition shall be filed and served within 15
days from notice of the decision sought to be
reviewed or of the denial of the petitioner's
MNT or MR filed in due time after judgment.
[Sec. 1, Rule 42]
Extension of period
Upon proper motion and the payment of the
full amount of the docket and other lawful fees
and the deposit for costs before the
expiration of the reglementary period, the
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CA may grant an additional period of 15 days
only within which to file the petition for review.
No further extension shall be granted except
for the most compelling reason and in no case
to exceed 15 days. [Sec. 1, Rule 42]
Form and contents
1. In 7 legible copies, with the original copy
intended for the court being indicated as
such by the petitioner
• Note: Under Sec. 5(b) of the Efficient
Use of Paper Rule [A.M. 11-9-4-SC],
file one original (properly marked) and
2 copies with their annexes with the CA
2. Full names of the parties to the case,
without impleading the lower courts or
judges thereof either as petitioners or
respondents
3. Specific material dates showing that it was
filed on time
4. A concise statement of the
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law, or
both, allegedly committed by the RTC,
and
d. Reasons or arguments relied upon for
the allowance of the appeal
5. Clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
COC of the RTC,
6. The requisite number of plain copies
thereof and of the pleadings and
7. Other material portions of the record as
would support the allegations of the petition
8. Certification of non-forum shopping
[Sec. 2, Rule 42]
Effect of failure to comply
Failure to comply with any of the following
requirements shall be sufficient ground for
dismissal:
1. Payment of docket and other lawful fees
Note: In petitions for review under Rules
42, 43, and 45, the docket fee is paid in the
appellate courts
2. Deposit for costs
3. Proof of service of petition
4. Contents of the documents which should
accompany the petition
REMEDIAL LAW
[Sec. 3, Rule 42]
Note: Failure to append the pleadings and
material portions of the record does not justify
the outright dismissal of the petition. There is
substantial compliance when the pleadings
were attached to the MR. [Mendoza v. David,
G.R. No. 147575 (2004)]
Perfection of appeal
Appeal is deemed perfected as to petitioner
upon the
1. Timely filing of the petition, and
2. Payment of the corresponding docket and
lawful fees.
[Sec. 8(a), Rule 42]
Jurisdiction of the RTC
1. The RTC loses jurisdiction over the case
upon the perfection of the appeals filed in
due time and the expiration of the time to
appeal of the other parties.
2. However, before the CA gives due
course to the petition, the RTC may:
a. Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter
litigated by the appeal, approve cornpromises
b. Permit appeals of indigent litigants
c. Order execution pending appeal in
accordance with Sec, 2 of Rule 39, and
d. Allow withdrawal of the appeal.
[Sec. 8(a), Rule 42]
Note: The Doctrine of Residual Jurisdiction
of the RTC, at item (2) above, applies as in
cases under Rule 42, except that the RTC must
exercise this jurisdiction before the CA gives
due course to the petition. [Sec. 8(a), Rule 42]
In contrast, the RTC must exercise residual
jurisdiction in Rule 41 prior to transmittal of the
original record or the record on appeal. [Sec. 9,
Rule 41]
Effect of appeal
General rule: The appeal shall stay the
judgment or final order.
Exceptions:
Page 131 of 525
U.P. LAW BOC
CIVIL PROCEDURE
1. Civil cases decided under the Rule on
Summary Procedure, or
2. The CA, the law, or ROC provide otherwise
[Sec. 8(a), Rule 42]
Action on petition
The CA may:
1. Require the respondent to file a comment
on the petition, not a motion to dismiss,
within 10 days from notice; or
2. Dismiss the petition if it finds
a. The same to be patently without merit
or prosecuted manifestly for delay, or
b. That the questions raised therein are
too
insubstantial
to
require
consideration
[Sec. 4, Rule 42]
Note: Under this Rule, appeal is discretionary
on the CA which may give its due course only
when the petition shows prima facie that the
lower court has committed error. [1 Riano 600,
2011 Ed.]
Contents of comment
1. In 7 legible copies
• Note: Under Sec. 5(b) of the Efficient
Use of Paper Rule [A.M. 11-9-4-SC],
file one original (properly marked) and
2 copies with their annexes with the CA
2. Certified true copies of such material
portions of the record referred to therein
3. Together with other supporting papers
4. Whether or not he accepts the statement of
matters involved in the petition
5. Such insufficiencies or inaccuracies as he
believes exist in petitioner’s statement of
matters involved but without repetition, and
6. The reasons why the petition should not be
given due course.
A copy thereof shall be served on the
petitioner.
[Sec. 5, Rule 42]
Due course
1. If upon the filing of the comment or such
other pleadings as the court may allow or
require, or
2. After the expiration of the period for the
filing thereof without such comment or
pleading having been submitted,
REMEDIAL LAW
the CA finds prima facie that the lower court
has committed an error of fact or law that
will warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition. [Sec. 6, Rule 42]
Whenever the CA deems it necessary, it may
order the COC of the RTC to elevate the
original record of the case including the oral
and documentary evidence within 15 days from
notice. [Sec. 7, Rule 42]
Submission for decision
1. If the petition is given due course, the CA
may
a. set the case for oral argument or
b. require the parties to submit
memoranda within a period of 15 days
from notice.
2. The case shall be deemed submitted for
decision upon the filing of the last pleading
or memorandum required by these Rules
or by the court itself.
[Sec. 9, Rule 42]
RULE 45
Appeal by certiorari from the RTC to the SC
via Rule 45
RTC must have rendered judgment in the
exercise of its original jurisdiction. [1
Regalado 609, 2010 Ed.]
If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law are
raised. [1 Regalado 609, 2010 Ed.]
Note: A question of law exists when there is a
doubt/controversy as to what the law is on a
certain state of facts. There is a question of fact
when the doubt/ difference arises as to the
truth/ falsehood of facts. [Ramos v. Pepsi, G.R.
No. L-22533 (1967)] If the test is whether the
appellate court can determine the issue
raised without reviewing or evaluating the
evidence, it is a question of law. The question
must not involve the examination of the
probative value of the evidence presented.
[Vda. De Arroyo v. El Beaterio, G.R. No. L22005 (1968)]
Page 132 of 525
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Grave abuse of discretion is not an
allowable ground under Rule 45. [Martires v.
CA, G.R. No. 78036-37 (1990)]
x. Appeal from Judgments or Final
Orders of The Court of Appeals
Any alleged errors committed in the exercise
of its jurisdiction will amount to nothing more
than errors of judgment which are reviewable
by timely appeal and not by special civil action
of certiorari. [Chuidian v. Sandiganbayan (Fifth
Division), G.R. No. 139941 (2001)]]
As provided in Rule 45, decisions, final
orders or resolutions of the CA in any case,
i.e., regardless of the nature of the action or
proceedings involved, may be appealed to the
SC by filing a petition for review, which would
be but a continuation of the appellate process
over the original case. [Fortune Guarantee and
Insurance Corporation v. CA, G.R. No. 110701
(2002)]
Certiorari as mode of appeal and as special
civil action
Appeal by
Certiorari as SCA
certiorari
[Rule 65]
[Rule 45]
Writ of certiorari
issues
for
the
correction of errors
Brings up for review, of jurisdiction only
errors of judgment or grave abuse of
committed by the discretion amounting
court.
to lack or excess of
jurisdiction. [Silverio
v. CA, G.R.No. L39861 (1986)]
Petition raises the
issue as to whether
Based on questions
the lower court acted
of law which the
without
or
in
appellant desires the
excess
of
appellant court to
jurisdiction or with
resolve
grave abuse of
discretion
REMEDIAL LAW
Involves the review
of the judgment,
award or final order
on the merits
May be directed
against
an
interlocutory order
of the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy or adequate
remedy
Must be made within
the
reglementary
period for appeal
May be filed not later
than 60 days from
notice
of
the
judgment, order or
resolution sought to
be assailed
Stays the judgment,
award
or
order
appealed from
Petitioner
and
respondent are the
original parties to
the action, and the
lower court or quasijudicial agency is not
to be impleaded
Prior filing of a MR is
not required [Sec.
1]
Appellate court is in
the exercise of its
appellate
jurisdiction
and
power of review
[Regalado 543-544,
1977 Ed.]
Page 133 of 525
Unless a writ of
preliminary
injunction or a TRO
shall have been
issued, does not
stay the challenged
proceeding
The parties are the
aggrieved
party
against the lower
court or quasijudicial agency and
the
prevailing
parties, who thereby
respectively become
the petitioner and
respondents
MR is a condition
precedent [Villa Rey
Transit v. Bello, G.R.
No. L-18957 (1963)],
subject to certain
exceptions.
Higher
court
exercises original
jurisdiction under
its power of control
and
supervision
over the proceedings
of
lower
courts
U.P. LAW BOC
CIVIL PROCEDURE
[Regalado 543-544,
1977 Ed.]
Questions of law
Doubt as to what the
law is on certain
facts.
[2 Herrera 643-645, 2000 Ed.]
Procedure [Rule 45]
File a verified petition for review on certiorari,
which may include an application for a writ of
preliminary injunction or other provisional
remedies. [Sec. 1]
Proof of service of a copy thereof on the
lower court concerned and on the adverse
party shall be submitted together with the
petition. [Sec. 3]
↓
Pay the corresponding docket and other
lawful fees to the COC of the SC and deposit
the amount of ₱500.00 for costs at the time
of the filing of the petition. [Sec. 3]
↓
SC may dismiss or deny the petition [Sec. 5],
or give due course to it. [Sec. 8]
↓
If the petition is given due course, the SC
may require the elevation of the complete
record of the case or specified parts thereof
within 15 days from notice. [Sec. 8]
Propriety as a mode of appeal
A party desiring to appeal by certiorari from a
judgment or final order or resolution of the
CA, the Sandiganbayan, the RTC or other
courts whenever authorized by law, may file
with the SC a verified petition for review on
certiorari. [Sec. 1, Rule 45]
Only questions of law are allowed.
The petition shall raise only questions of law.
[Sec. 1, Rule 45]
Whether an appeal involves only questions of
law or both questions of law and fact is best left
to the determination of an appellate court and
not by the court which rendered the decision
appealed from. [PNB v. Romillo, etc., et al.,
G.R. No. L-70681 (1985)]
If the appellate court
can determine the
issue
without
reviewing
or
evaluating
the
evidence.
REMEDIAL LAW
Questions of fact
Doubt as to the truth
or falsehood of facts,
or as to probative
value
of
the
evidence presented.
The determination
involves evaluation
or
review
of
evidence.
Query involves the
calibration of the
whole
evidence
considering mainly
the credibility of
Can
involve
witnesses,
questions
of
existence,
and
interpretation of law
relevancy of specific
with respect to a
surrounding
certain set of facts.
circumstances and
relation to each
other and the whole
probabilities of the
situation.
[1 Regalado 609, 2010 Ed. citing Bernardo v.
CA, G.R. No. 101680 (1992), Pilar
Development Corp. v. IAC, G.R. No. 72283
(1986); Vda. de Arroyo v. El Beaterio del
Santissimo Rosario de Molo, G.R. No. L-22005
(1968)]
Conclusiveness of findings of fact
General rule: The SC is not a trier of facts,
and is not to review or calibrate the evidence
on record. Moreover, findings of facts of trial
court, as affirmed on appeal by the CA, are
conclusive on the court. [Boston Bank of the
Philippines v. Manalo, G.R. No. 158149 (2006)]
Exceptions:
CA’s findings of fact may be reviewed by
the SC on appeal by certiorari when:
1. Conclusion is a finding grounded entirely
on speculations, surmises or conjectures
[Joaquin v. Navarro, G.R. No. L-5426
(1953)]
Page 134 of 525
U.P. LAW BOC
CIVIL PROCEDURE
2. Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok, G.R.
No. 48403 (1942)]
3. There is grave abuse of discretion in the
appreciation of facts [Buyco v. People,
G.R. No. L-6327 (1954)]
4. Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing, G.R. No. L4875 (1953)]
5. The CA’s findings of fact are conflicting
[Casica v. Villaseca, G.R. No. L-9590
(1957)]
6. The CA, in making its findings, went
beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee [Nakpil & Sons v.
CA, G.R. No. L-47851 (1986)]
7. The CA manifestly overlooked certain
relevant facts not disputed by the parties
and which, if properly considered, would
justify a different conclusion [Abellana v.
Dosdos, G.R. No. L-19498 (1965)]
8. The CA’s findings of fact are contrary to
those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the
respondent, or where the findings of fact of
the CA are premised on absence of
evidence but are contradicted by the
evidence of record. [Manlapaz v. CA, G.R.
No. L-56589 (1987)]
Period of appeal
Within 15 days from notice of the
1. Judgment or final order or resolution
appealed from, or
2. Denial of the petitioner’s MNT or MR filed
in due time after notice of the judgment.
[Sec. 2, Rule 45]
Note: The Neypes doctrine which gives a fresh
15-day period to the appellant is also
applicable to Rule 45 petitions. [Neypes v. CA,
G.R. No. 141524 (2005)
Extension of period
On motion duly filed and served, with full
payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
REMEDIAL LAW
justifiable reasons grant an extension of 30
days only within which to file the petition. [Sec.
2, Rule 45]
Form and contents of petition
1. In 7 legible copies, with the original copy
intended for the court being indicated as
such by the petitioner
a. Under Sec. 5(a) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and four
copies, unless the case is referred to
the SC en banc, in which event, the
parties shall file ten additional copies
and simultaneously soft copies of the
same and their annexes (the latter in
PDF format) either by email to the SC’s
e-mail address or by compact disc
(CD)
2. Full names of the parties to the case,
without impleading the lower courts or
judges thereof either as petitioners or
respondents;
3. Specific material dates showing that it was
filed on time;
4. A concise statement of the
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law, or
both, allegedly committed by the rtc,
and
d. Reasons or arguments relied upon for
the allowance of the appeal
5. Clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
COC of the RTC,
6. Requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support the
allegations of the petition
7. Certificate of non-forum shopping
[Sec. 2, Rule 45]
Grounds for denial of petition
The SC may dismiss the petition on motion or
motu proprio upon showing:
a. Failure of petitioner to comply with
1. Payment of docket or other lawful fees
2. Deposit for costs
3. Proof of Service; and
Page 135 of 525
U.P. LAW BOC
CIVIL PROCEDURE
4. Contents of and documents which
would accompany the petition
b. Appeal is without merit
c. It is prosecuted manifestly for delay
d. That the questions raised are so
unsubstantial as to require consideration.
[Sec. 5, Rule 45]
Notes:
Although the lower court is not a party to the
case, failure to present proof of service of
copies to the lower court and to the adverse
party shall result in the outright dismissal of the
appeal. This is because the service is for the
purpose of giving the lower court notice that its
judgment should not be entered since it is not
yet executory due to the pending petition. [1
Regalado 615-616, 2010 Ed.]
by petition for review on certiorari raising
pure questions of law in accordance with Rule
45 of the ROC. [Sec. 7, P.D. 1606, as
amended; and Sec. 1, Rule 45]
xii. Appeal from Judgments or Final
Orders of The Court of Tax
Appeals
Mode of review
The CTA is no longer a quasi-judicial
agency under R.A. 9282, as of April 7, 2004.
The CTA is no longer covered by Rule 43.
A party adversely affected by a decision or
ruling of the CTA en banc may file with the SC
a verified petition for review on certiorari
under Rule 45. [Sec. 11, R.A. 9282 and A.M.
No. 07-7-12-SC]
Review is discretionary
A review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important
reasons therefore.
The following are examples that may be
considered by the court:
1. When the court a quo has decided a
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable decisions of the SC, or
2. When the court a quo has so far departed
from the accepted and usual course of
judicial proceedings, or so far sanctioned
such departure by a lower court, as to call
for an exercise of the power of supervision
[Sec. 6, Rule 45]
Elevation of records
If the petition is given due course, the SC may
require the elevation of the complete record of
the case or specified parts thereof within 15
days from notice. [Sec. 8, Rule 45]
xi. Appeal from Judgments or Final
Orders of The Sandiganbayan
Mode of review
Decisions
and
final
orders
of
the
Sandiganbayan shall be appealable to the SC
REMEDIAL LAW
xiii. Review of Final Judgments or
Final Orders of The Commission
on Audit
Mode of review
A judgment or final order or resolution of the
Commission on Audit (COA) may be brought
by the aggrieved party to the SC on certiorari
under Rule 65, except as hereinafter provided.
[Sec. 2, Rule 64]
Filing of the petition
1. The petition shall be filed within 30 days
from notice of the judgment or final order or
resolution sought to be reviewed.
2. The filing of a MNT or MR of said judgment
or final order or resolution, if allowed under
the procedural rules of the Commission
concerned, shall interrupt the period
herein fixed.
3. If the motion is denied, the aggrieved party
may file the petition within the remaining
period, but which shall not be less than 5
days in any event, reckoned from notice of
denial.
[Sec. 3, Rule 45]
Effect of filing
The filing of a petition for certiorari shall not
stay the execution of the judgment or final
order or resolution sought to be reviewed,
Page 136 of 525
U.P. LAW BOC
CIVIL PROCEDURE
unless the SC shall direct otherwise upon such
terms as it may deem just. [Sec. 8, Rule 64]
When the decision, order or resolution
adversely affects the interest of any
government agency, the appeal may be taken
by the proper head of that agency. [Sec. 1,
Rule XII, 2009 Revised Rules of Procedure of
the Commission on Audit]
xiv. Review of Final Judgments or
Final Orders of The Commission
on Elections
Mode of review
A judgment or final order or resolution of the
Commission on Elections (COMELEC) may be
brought by the aggrieved party to the SC on
certiorari under Rule 65, except as
hereinafter provided. [Sec. 2, Rule 64]
Unless otherwise provided by law, or by any
specific provisions in the COMELEC Rules of
Procedure, any decision, order or ruling of the
Commission may be brought to the SC on
certiorari by the aggrieved party within 30
days from its promulgation. [Sec. 1, Rule 37,
COMELEC Rules of Procedure]
xv. Review of Final Judgments or
Final Orders of The Civil Service
Commission
See Rule 43 on Review of QJAs below.
xvi. Review of Final Judgments or
Final Orders of The Ombudsman
Unappealable decisions
The following decisions are unappealable:
1. In administrative cases where respondent
is absolved of the charge
2. In case of conviction, where penalty
imposed is public censure or reprimand, or
suspension of not more than one month or
a fine equivalent to one month salary
[Sec. 7, Rule III, Admin Order No. 7]
REMEDIAL LAW
cases should be taken to the CA under the
provisions of Rule 43. [Fabian v. Desierto,
G.R. No. 129742 (1998)]
Note: The CA has jurisdiction over orders,
directives and decisions of the Office of the
Ombudsman in administrative disciplinary
cases only. It cannot review the orders,
directives or decisions of the Office of the
Ombudsman in criminal or non-administrative
cases [Duyon v. The Former Special Fourth
Division of the Court Of Appeals, G.R. No.
172218 (2014)]
Jurisdiction of the SC
Decisions of the Ombudsman in criminal cases
are unappealable. However, where the findings
of the Ombudsman on the existence of
probable cause (in criminal cases) are tainted
with grave abuse of discretion amounting to
lack or excess of jurisdiction, the aggrieved
party may file before the SC a petition for
certiorari under Rule 65. [Duyon v. The
Former Special Fourth Division of the Court Of
Appeals, G.R. No. 172218 (2014)]
xvii. Review of Final Judgments or
Final Orders of The National Labor
Relations Commission
Appeal from the NLRC
Appeal from quasi-judicial agencies under
Rule 43 does not apply to judgments or final
orders issued under the Labor Code. [Sec. 2,
Rule 43]
The remedy of a party aggrieved by the
decision of the NLRC is to file a MR and, if
denied, file a special civil action for certiorari
under Rule 65 within 60 days from notice of
the decision. In observance of the doctrine of
hierarchy of courts, this should be filed with the
CA. [St. Martin Funeral Homes v. NLRC, G.R.
No. 130866 (1998)]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
the SC [Dongon v. Rapid Movers and
Forwarders, G.R. No. 163431 (2013)]
Jurisdiction of the CA
Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary
Page 137 of 525
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a.
CIVIL PROCEDURE
Review of Final Judgments or Final
Orders of Quasi-judicial Agencies
Scope
Appeals from awards, judgments, final orders,
or resolutions of or authorized by any quasijudicial agency (QJA) in the exercise of its
quasi-judicial functions. [Sec. 1, Rule 43]
A quasi-judicial agency or body is an organ
of government other than a court and other
than a legislature, which affects the rights of
private parties though either adjudication or
rule-making. [United Coconut Planters Bank v.
E. Ganzon, Inc., G.R. No. 168859 (2009)]
Quasi-judicial agencies covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents, Trademarks and
Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA
6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction
Industry
Arbitration
Commission, and
19. Voluntary arbitrators authorized by law
Where to appeal
Appeal may be taken to the CA on questions of
fact, of law, or mixed questions of fact and law.
[Sec. 3, Rule 43]
Period to appeal
Within 15 days from
1. Notice of award, judgment, final order, or
resolution, or
2. Date of its last publication, if publication is
required by law for its effectivity; or
REMEDIAL LAW
3. Denial of petitioner’s MNT or MR duly filed
in accordance with the governing law of the
court or agency a quo.
[Sec. 4, Rule 43]
Extension of period
Upon proper motion and the payment of the full
amount of the docket fee before the expiration
of the reglementary period, the CA may grant
an additional period of 15 days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed 15
days. [Sec. 4, Rule 43]
How taken
1. File a verified petition for review in 7 legible
copies with the CA
a. The original copy of the petition
intended for the CA shall be indicated
as such by the petitioner.
b. Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and 2 copies
with their annexes with the CA
2. Proof of service of a copy thereof on the
adverse party and on the court or agency a
quo.
3. Upon the filing of the petition, pay to the
COC of the CA the docketing and other
lawful fees and deposit PHP 500.00 for
costs.
a. Exemption from payment of docketing
and other lawful fees and the deposit
for costs may be granted by the CA
upon a verified motion setting forth
valid grounds therefor.
b. If the CA denies the motion, the
petitioner shall pay the docketing and
other lawful fees and deposit for costs
within 15 days from notice of the denial.
[Sec. 5, Rule 43]
Contents of petition
1. Full names of parties to the case, without
impleading the court or agencies
2. Concise statement of facts and issues
involved, and grounds relied upon for
review
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U.P. LAW BOC
CIVIL PROCEDURE
3. Clearly legible duplicate original or a
certified true copy of award, judgment, final
order, or resolution appealed from
4. Certified true copies of such material
portions of record referred to in the petition
and other supporting papers
5. Certificate of non-forum shopping
6. Statement of specific material dates
showing timeliness of appeal
[Sec. 6, Rule 43]
Effect of failure to comply
Failure to comply with the following is sufficient
ground for the CA to dismiss the appeal:
1. Payment of docket and lawful fees
2. Deposit for costs
3. Proof of service of petition
4. Contents of petition
5. Documents which should accompany the
petition
[Sec. 7, Rule 43]
Action on the petition
The CA may
1. Require the respondent to file a Comment
within 10 days from notice, or
2. Dismiss the petition if CA finds the same to
be
a. Patently without merit
b. Prosecuted manifestly for delay, or
c. Questions raised are too insubstantial
to require consideration
[Sec. 8, Rule 43]
Contents of comment
1. Filed within 10 days from notice in 7 legible
copies
a. Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and 2 copies
with their annexes with the CA
2. Accompanied by clearly legible certified
true copies of such material portions of the
record referred to therein together with
other supporting papers
3. Point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues;
and
4. State the reasons why the petition should
be denied or dismissed.
REMEDIAL LAW
5. A copy thereof shall be served on the
petitioner, and proof of such service shall
be filed with the CA.
[Sec. 9, Rule 43]
Due course
The CA may give due course to the petition
1. If upon
a. The filing of the comment or such other
pleadings or documents as may be
required or allowed by the CA or
b. The expiration of the period for the filing
thereof, and
2. On the basis of the petition or the records,
the CA finds prima facie that the court or
agency concerned has committed
errors of fact or law that would warrant
reversal or modification of the award,
judgment, final order or resolution sought
to be reviewed.
[Sec. 10, Rule 43]
The findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the CA. [Sec. 10,
Rule 43]
Transmittal of records
Within 15 days from notice that the petition has
been given due course, the CA may require
the court or agency concerned to transmit the
original or a legible certified true copy of the
entire record of the proceeding under review.
• The record to be transmitted may be
abridged by agreement of all parties to the
proceeding.
• The CA may require or permit subsequent
correction of or addition to the record.
[Sec. 11, Rule 43]
Effect of appeal
General rule: Appeal shall not stay the award,
judgment, final order or resolution sought to be
reviewed.
Exception: The CA shall direct otherwise upon
such terms as it may deem just.
[Sec. 12, Rule 43]
Submission for decision
If petition is given due course, the CA may
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a. Set the case for oral argument or
b. Require parties to submit memorandum
within 15 days from notice.
Upon filing of the last pleading or
memorandum required by the ROC or the CA,
case is deemed submitted for decision.
[Sec. 13, Rule 43]
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Comparative table on the modes of appeal
RULE 40
RULE 41
ORDINARY APPEAL
Matter of Right; Filed with the court
of origin
All records are elevated from court of
origin
Appeal from
Appeal
from
a a decision of
judgment or final the RTC in
order
of
a the exercise
MTC/MeTC/MCTC
of its original
jurisdiction
Rule 41 provisions shall apply to
Rule 40 if not consistent with Rule 40
provisions
RULE 40
Filed with the MTC
Appeal to the RTC
Questions of fact or
mixed questions of
fact and law
RULE 40
RULE 41
Filed with the
RTC
Appeal to the
CA
Questions of
fact or mixed
questions of
fact and law
RULE 41
BY NOTICE OF APPEAL
Within 15 days after notice of
judgment or final order
BY RECORD ON APPEAL
Within 30 days from notice of
judgment or final order by filing a
notice of appeal and a record on
appeal
When Proper
RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW
Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeal from a
decision of the
RTC rendered in
the exercise of its
appellate
jurisdiction
Appeals
from
awards, judgments,
final
orders
or
resolution
of
or
authorized by any
quasi-judicial
agency
in
the
exercise of its quasijudicial functions
Where to File
RULE 42
Filed with the CA
Appeal to the CA
RULE 43
Filed with the CA
Appeal to the CA
Questions of fact, Questions of fact,
questions of law, questions of law, or
or
mixed mixed questions of
questions of both
fact and law
Time for Filing
RULE 42
RULE 43
Within 15 days from:
1. Notice of award,
judgment, final
order,
or
Within 15 days
resolution;
from notice of
decision, or
2. Date
of
Within 15 days
publication,
if
from notice of
publication
is
denial
of
required by law
petitioner’s MNT
for its effectivity;
or reconsideration
or
3. Denial
of
petitioner’s MNT
or MR
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Appeals to the SC from a
judgment or final order or
resolution of the CA,
Sandiganbayan, RTC or
such other courts as may
be authorized by law
Decisions, final orders, or
resolutions of the CA in
any case, regardless of
the nature of the action or
proceedings
involved,
may be appealed to the
SC by filing a petition for
review
RULE 45
Filed with the SC
Appeal to the SC
Only questions of law
RULE 45
Within 15 days from:
1. Notice of judgment,
final
order,
or
resolution appealed
from; or
2. Notice of denial of
MNT
or
reconsideration filed
in due time after
notice of judgment
U.P. LAW BOC
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c. Relief from Judgments, Orders,
and Other Proceedings
Remedies after finality of judgment
1. Petition for Relief [Rule 38]
2. Action to Annul Judgment [Rule 47]
3. Certiorari
4. Collateral Attack of a Judgment that is Void
on its Face
[1 Riano 60, 2011 Ed.]
Nature
A legal remedy whereby a party seeks to set
aside a judgment rendered against him by a
court whenever he was unjustly deprived of a
hearing or was prevented from taking an
appeal because of fraud, accident, mistake, or
excusable negligence (FAME). [Quelnan v.
VHF Phils, G.R. No. 138500 (2005)]
A petition for relief from judgment is an
equitable remedy allowed only in exceptional
cases when there is no other available or
adequate remedy. When a party has another
remedy available, either MNT or appeal, and
he was not prevented by FAME from filing such
motion or taking such appeal, he cannot avail
himself of this petition. [Trust International
Paper Corp. v. Pelaez, G.R. No. 164871
(2006)]
In addition, a petition for relief is available
only when the loss of the remedy was due to
the petitioner’s own fault. [Tuason v CA, G.R.
No. 116607 (1996)]
Relief under Rule 38 will not be granted to a
party who seeks to be relieved from the effects
of the judgment when the loss of the remedy of
law was due to his own negligence, or a
mistaken mode of procedure for that matter;
otherwise, the petition for relief will be
tantamount to reviving the right of appeal which
has already been lost either because of
inexcusable negligence or due to a mistake of
procedure by counsel. [Fukuzumi v. Sanritsu
Great International Corporation, G.R. No.
140630 (2004)]
REMEDIAL LAW
Motion for new trial and petition for relief
Motion for New
Petition for Relief
Trial
[Rule 38]
[Rule 37]
Available
after
Available
before
judgment
has
judgment becomes
become final and
final and executory
executory
Applies
to
Applies
to
judgments,
final
judgments or final
orders and other
orders only
proceedings
Grounds:
1. FAME; or
2. Newly
Ground: FAME
discovered
evidence
Filed:
1. Within 60 days
from knowledge
Filed within the time
of judgment; and
to appeal
2. Within 6
months from
entry of
judgment
If denied, order
If denied, order of
denying a petition
denial
is
not
for relief is not
appealable; hence,
appealable; remedy
remedy is appeal
is appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be Petition must be
verified
verified
These remedies are mutually exclusive.
[Francisco v. Puno, G.R. No. L-55694
(1981)]
(1 Regalado 426-437, 441-442, 2010 Ed.)
When proper
When a judgment or final order is entered, or
any other proceeding is thereafter taken
against a party in any court through FAME.
[Sec. 1, Rule 38]
Thus, it was held that a petition for relief is
also applicable to a proceeding taken after
entry of judgment or final order such as an
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order of execution [Cayetano v. Ceguerra, G.R.
No. L-18831 (1965)] or an order dismissing an
appeal. [Medran v. CA, G.R. No. L-1350
(1949)]
A party who has filed a timely MNT or MR
can no longer file a petition for relief from
judgment after his motion has been denied.
[Francisco v. Puno, G.R. No. L-55694 (1981)]
Note: These two periods must concur, are
not extendible and are never interrupted.
Strict compliance with these periods stems
from the equitable character and nature of the
petition for relief. Such petition is actually the
“last chance” given by law to litigants to
question a final judgment or order. Failure to
avail of such chance, within the grace period
fixed by the Rules, is fatal. [Quelnan v. VHF
Phils, G.R. No. 138500 (2005)]
A petition for relief is not an available remedy
in the SC or the CA. [Purcon vs MRM
Philippines Inc., G.R. No. 182718 (2008)]
i. Grounds
Remedy
for
Availing
of
the
1. When judgment or final order is entered, or
any other proceeding is thereafter taken
against petitioner through FAME
• Petition is filed in the same court, in the
same case with prayer for the
judgment, order, proceeding to be set
aside.
2. When petitioner has been prevented from
taking an appeal by FAME
• Petition is filed in the same court, in the
same case with prayer for the appeal to
be given due course.
[Secs. 1-2, Rule 38]
Note: “Extrinsic fraud” - fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or
defense. Such fraud concerns not the
judgment itself but the manner in which it was
obtained. [AFP Mutual Benefit Association, Inc.
v. RTC-Marikina City, G.R. No. 183906 (2011)]
ii. Time to File Petition
1. Within 60 days after the petitioner learns
of the judgment, final order, or other
proceeding to be set aside, and
2. Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken.
[Sec. 3, Rule 38]
REMEDIAL LAW
iii. Contents of Petition
The petition must be:
1. Verified;
2. Accompanied by an affidavit showing the
FAME relied upon; and
3. The facts constituting the petitioner’s good
and substantial cause of action or defense,
as the case may be.
[Sec. 3, Rule 38]
Note: A petition for relief from judgment may
only be availed of by a party to the proceeding.
[Alaban vs CA, 470 SCRA 697, 705]
The absence of an affidavit of merits is a
fatal defect and warrants denial of the petition.
[Fernandez v. Tan Tiong Tick, G.R. No. 15877
(1961)] However, it is not a fatal defect so long
as the facts required to be set out also appear
in the verified petition. [Fabar Inc. v. Rodelas,
G.R. No. L-46394 (1977)]
When affidavit of merit is not necessary:
1. When there is lack of jurisdiction over the
defendant;
2. When there is lack of jurisdiction over the
subject matter;
3. When judgment was taken by default;
4. When judgment was entered by mistake or
was obtained by fraud; or
5. Other similar cases.
(1 Regalado 434-435, 2010 Ed.]
Order to file answer
If the petition is sufficient in form and
substance to justify relief, the court in which it
is filed, shall issue an order requiring the
adverse parties to answer the same within 15
days from the receipt thereof.
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•
The order shall be served in such manner
as the court may direct, together with
copies of the petition and the
accompanying affidavits.
[Sec. 4, Rule 38]
Note: Failure to answer the petition for relief
does not constitute default. Even without it, the
court will still have to hear the petition on the
merits. [1 Regalado 447. 2010 Ed.]
Proceedings after answer is filed
After the filing of the answer or the expiration of
the period therefore, the court shall hear the
petition
a. If the allegations are not true, the petition
shall be dismissed
b. If the allegations are true, it shall set aside
the judgment or final order or other
proceeding complained of upon such terms
as may be just and the case shall stand as
if such judgment, final order or other
proceeding had never been rendered,
issued or taken. The court shall then
proceed to hear and determine the case as
if a timely motion for a new trial or
reconsideration had been granted by it.
[Sec. 3, Rule 38]
REMEDIAL LAW
d. Annulment of Judgments or
Final Orders and Resolutions
Nature
An action for annulment of judgment is a
remedy in equity exceptional in character
availed of only when other remedies are
wanting. [Spouses Teano vs The Municipality
of Navotas, G.R. No. 205814 (2016)]
It is a remedy independent of the case where
the judgment sought to be annulled is
rendered. It is not the continuation of the same
case, like in the reliefs of MR, appeal, or
petition for relief. [CIR vs Kepco Ilijan Corp.,
G.R. No. 199422 (2016)]
Such remedy is considered an exception to the
final judgment rule or the doctrine of
immutability of judgments. [Diona v. Balangue,
688 SCRA 22, 34, (2013)]
Purpose
The purpose of such action is to have the final
and executory judgment set aside so that there
will be a renewal of litigation. [Spouses Teano
v. The Municipality of Navotas, G.R. No.
205814 (2016)]
Note: Where the denial of an appeal is set
aside, the lower court shall be required to give
due course to the appeal and to elevate the
record of the appealed case as if a timely and
proper appeal had been made. [Sec. 7, Rule
38]
When proper
An action for annulment of judgment may be
availed of even if the judgment to be annulled
has already been fully executed or
implemented. [Islamic Da’wah Council of the
Philippines. v. CA, G.R. No. 80892 (1989)]
Remedy for denial of petition for relief
Appeal from an order denying a petition for
relief is no longer available under the present
rules. [1 Regalado 437, 2010 Ed. citing Sec. 1,
Rule 41]
When not available
The remedy may not be invoked:
a. Where the party has availed himself of the
remedy of new trial, appeal, petition for
review, or other appropriate remedy and
lost, or
b. Where he has failed to avail himself of
those remedies through his own fault or
negligence.
[Republic v. ‘G’ Holdings, Inc., G.R. No.
141241 (2005)]
Note: An order granting a petition for relief is
interlocutory and non-appealable [1 Regalado
447, 2010 Ed.]
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper
[1 Regalado 437, 2010 Ed.]
Note: It is a condition sine qua non that one
must have failed to avail of those remedies,
through no fault attributable to him. Otherwise,
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he would benefit from his own inaction or
negligence. [Republic v. De Castro, G.R. No.
189724 (2011)]
Where filed
Judgment, Final
Order or
Resolution of the
RTC
Filed with the CA
[Sec. 1, Rule 47]
CA has exclusive
and
original
jurisdiction over said
action under Sec.
9(2) of BP 129
The CA may dismiss
the case outright; it
has the discretion on
whether or not to
entertain
the
petition. [Sec. 5,
Rule 47]
Judgment, Final
Order or
Resolution of the
MTC, etc.
Filed with the RTC
[Sec. 19(6), BP 129]
RTC as a court of
general jurisdiction
under Sec. 19(6), BP
129
The RTC has no
such discretion, it is
required to consider
it as an ordinary civil
action.
Who can file
A person who is not a party to the judgment
may sue for its annulment provided that he can
prove:
a. The judgment was obtained through fraud
or collusion, and
b. He would be adversely affected thereby.
[Alaban v. CA, G.R. No. 156021 (2005)]
i. Grounds for Annulment
The annulment may be based only on the
grounds of:
a. Extrinsic fraud, and
• Note: Such shall not be a valid ground
if it was availed of, or could have been
availed of, in a MNT or petition for
relief.
b. Lack of jurisdiction.
[Sec. 2, Rule 47]
Extrinsic fraud
It refers to any fraudulent act of the prevailing
party in litigation committed outside the trial
of the case where the defeated party
REMEDIAL LAW
prevented from fully exhibiting his side by
fraud or deception practiced on him by his
opponents like:
a. Keeping him away from court,
b. Giving him false promise of a compromise,
or
c. Where an attorney fraudulently or without
authority connives at his defeat.
[Cagayan Economic Zone Authority vs
Meridien Vista Gaming Corp, G.R. No. 194962
(2016)]
Note: Use of forged instruments, perjured
testimonies, or other manufactured evidence is
not extrinsic fraud since such evidence does
not preclude a party’s participation in trial.
[Bobis v. CA, G.R. No. 113796 (2000), and
Conde v. IAC, G.R. No. 70443 (1986)]
Lack of jurisdiction
Either lack of jurisdiction over the person of the
defending party, or over the subject matter of
the claim. [1 Regalado 630, 2010 Ed.]
Petitioner must show absolute lack of
jurisdiction and not mere abuse of judicial
discretion; a claim of grave abuse of discretion
will support a petition for certiorari but not an
action for annulment of judgment. [1 Riano
633, 2011 Ed.]
Only evidence found in the record can justify
nullity. [Arcelona v. CA, G.R. No. 102900
(1997)]
Form and contents of petition
1. Verified petition, alleging therein:
a. With particularity the facts and the law
relied upon
b. Petitioner’s good and substantial cause
of action or defense
2. In 7 clearly legible copies, together with
sufficient copies corresponding to the
number of respondents
3. Certified true copy of the judgment or final
order or resolution shall be attached to the
original copy of the petition intended for the
court and indicated as such by the
petitioner
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4. Affidavits of witnesses or documents
supporting the cause of action or defense;
and
5. Certificate of non-forum shopping.
[Sec. 3, Rule 47]
ii. Period to File Action
Extrinsic
fraud
Period for
filing
4 years from
discovery
Lack of
jurisdiction
Before it is
barred
by
laches
or
estoppel
[Sec. 3, Rule 47]
Note: There must be a manifest showing with
petition that it was filed within the 4-yr period.
[1 Regalado 532, 2010 Ed.]
Action of the court
1. Should the court find no substantial merit
in the petition, the same may be
dismissed outright with specific reasons for
such dismissal.
2. Should prima facie merit be found in the
petition, the same shall be given due
course and summons shall be served on
the respondent.
[Sec. 5, Rule 47]
Procedure
The procedure in ordinary civil cases shall
be observed. Should a trial be necessary, the
reception of the evidence may be referred to a
member of the court or a judge of a RTC. [Sec.
6, Rule 47]
Note: Prima facie determination is not available
in annulment of judgments or final orders of
MTCs before the RTC. [Sec. 10, Rule 47]
iii. Effects of Judgment of Annulment
Based on lack of jurisdiction
A judgment of annulment shall set aside the
questioned judgment or final order or
resolution and render the same null and void,
without prejudice to the original action
REMEDIAL LAW
being refiled in the proper court. [Sec. 7, Rule
47]
Based on extrinsic fraud
The court may on motion order the trial court
to try the case as if a timely motion for new
trial had been granted therein. [Sec. 7, Rule 47]
Difference: When it is based on extrinsic fraud,
the original judgment was not tainted by
jurisdictional defects but by the deception
which then resulted in the prejudicial error [1
Regalado 635-636, 2010 Ed.]
Note: The judgment of annulment may include
the award of damages, attorney’s fees, and
other reliefs. [Sec. 9, Rule 47]
Effect on prescriptive period for refiling of
the original action
When suspended - from the filing of said
original action until the finality of the judgment
of annulment.
When not suspended - where the extrinsic
fraud is attributable to the plaintiff in the original
action.
[Sec. 8, Rule 47]
e. Collateral Attack of Judgments
Direct attack vs. Collateral attack
a. Direct attack - The object of an action is to
annul or set aside such judgment, or enjoin
its enforcement.
b. Collateral/Indirect attack - In an action to
obtain a different relief, an attack on the
judgment or proceeding is made as an
incident thereof. [Hortizuela v. Tagufa,
G.R. No. 205867 (2015)]
The validity of a judgment or order of the
court, which has become final and
executory, may be attacked in three ways:
a. By a direct action or proceeding to annul
the same
• To annul and enjoin enforcement of the
judgment, where the alleged defect is
not apparent on its face or from the
recitals contained in the judgment; See
Rule 47
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b. By direct action, as certiorari, or by
collateral attack in case of apparent nullity
• The collateral attack must be against a
challenged judgment which is void
upon its face as where it is patent that
the court which rendered said
judgment has no jurisdiction or that the
nullity of the judgment is apparent from
its own recitals
c. By a Petition for Relief under Rule 38
• Must be taken in the same action or
proceeding in which the judgment or
order was entered.
[1 Regalado 454-456, 2010 Ed.]
Void judgment
1. Considered as no judgment at all.
2. Cannot be the source of any right nor the
creator of any obligation.
3. All acts performed pursuant to it and all
claims emanating from it have no legal
effect.
4. Can never become final and any writ of
execution based on it is void.
[Polystyrene Manufacturing v. Privatization
Management, G.R. No. 171336 (2007)]
Attacking a void judgment
1. It may be assailed any time, and
2. It may be done collaterally or in a direct
action unless barred by laches.
[Spouses Benatiro v. Heirs of Cuyos, G.R. No.
161220 (2008)]
Remedies
If the period for appeal has not yet lapsed:
1. New Trial and Reconsideration [Rule 37],
2. Appeal [Rules 40-45],
3. Petition for Relief [Rule 48], and
4. Other appropriate remedies such as
certiorari.
[1 Riano 60, 2011 Ed.]
If the appropriate remedies are no longer
available without the fault of the petitioner, he
may avail of a petition for Annulment of
Judgment [Rule 47]
[Mandy Commodities Co. Inc. v ICBC, G.R. No.
166734 (2009)]
REMEDIAL LAW
Note: When all else fails, there is jurisprudence
to the effect that a patently void judgment may
be dealt with by a Main Action for Injunction.
[Barrameda v. Moir, G.R. No. L-7927 (1913)]
19. EXECUTION,
SATISFACTION, AND EFFECT
OF JUDGMENTS
Definition
Execution is a remedy afforded by law for the
enforcement of a judgment. It is a judicial writ
issued to an officer authorizing and requiring
him to execute the judgment of the court.
[Pamantasan ng Lungsod ng Maynila v. IAC,
G.R. No. L-65439 (1986), citing 2 Francisco,
592-593, 1966 Ed.]
Note: The prevailing party can secure certified
true copies of the judgment or final order of the
appellate court, the entry thereof, and submit it
to the court of origin to justify a motion for a writ
of execution even without waiting for receipt of
the records from the appellate court. [Circular
No. 24-94]
The appellate court can also direct the
issuance of the writ of execution upon motion
in the same while the records are still with the
appellate court, or even after remand to the
lower court. [1 Regalado 452, 2010 Ed.]
a. Difference Between Finality of
Judgment for Purposes of
Appeal and for Purposes of
Execution
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [2 Herrera 281, 2007
Ed.; 1 Regalado 450, 2010 Ed.]
Finality for purposes of appeal refers to the
distinction between “final judgments or orders”
and “interlocutory orders,” which cannot be
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appealed according to Sec. 1(b), Rule 41 [1
Regalado 450, 2010 Ed.]
A final judgment or order is one that finally
disposes of a case, leaving nothing more to be
done by the court in respect thereto. Examples
include:
a. An adjudication on the merits which, on the
basis of the evidence presented at the trial,
declares categorically what the rights and
obligations of the parties are and which
party is in the right; or
b. A judgment or order that dismisses an
action on the ground, for instance, of res
judicata or prescription.
[Heirs of Dimaampao v. Alug, G.R. No. 198223
(2015)]
Finality for purposes of execution refers to
the judgment being “final and executory” upon
the lapse of the appeal period if no appeal is
taken, upon which execution shall issue as a
matter of right according to Sec. 1, Rule 39. [1
Regalado 449-450, 2010 Ed., see Perez v.
Zulueta, G.R. No. L-10374 (1959)]
A judgment becomes “final and executory”
by operation of law. [Prieto v. Alpadi
Development Corporation, G.R. No. 191025
(2013)]
Final Judgments
Final
judgments
finally dispose of,
adjudicate,
or
determine the rights
of
the
parties,
HOWEVER, they are
not yet “final and
executory” pending
the expiration of the
reglementary period
for
appeal.
[1
Regalado 450, 2010
Ed.]
Final and
Executory
Judgments
Judgments become
final and executory
by operation of law
after the lapse of the
period for appeal
without an appeal
being filed. [Cadena
v.
Civil
Service
Commission, G.R.
No. 191412 (2012)]
During that period,
the winning party
cannot demand the
execution of the
judgment yet as a
right. [City of Manila
v. CA, G.R. No.
100626 (1991)]
REMEDIAL LAW
After the lapse of the
reglementary period
to
appeal,
the
prevailing party is
entitled to a writ of
execution,
and
issuance thereof is a
ministerial duty of the
court. [City of Manila
v. CA, G.R. No.
100626 (1991)]
b. When Execution Shall Issue
General rule: Execution shall issue as a matter
of right, on motion, upon a judgment or order
that disposes of the action or proceeding
upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.
[Sec. 1, Rule 39]
Exceptions: The following are immediately
executory without the expiration of the period
to appeal
a. Judgments in actions for injunction,
receivership, accounting and support,
and such other judgments as are now or
may hereafter be declared to be
immediately executory. [Sec. 1, Rule 39]
b. Judgments in an action for forcible entry
or unlawful detainer rendered against the
defendant. [Sec. 19, Rule 39]
c. The decision of the Regional Trial Court in
civil cases governed by the Rules on
Summary Procedure. [Sec. 21, Rules on
Summary Procedure]
d. The decision of the Labor Arbiter
reinstating a dismissed or separated
employee. [Art. 229, Labor Code]
Exception to the exception: The appellate
court in its discretion may make an order
suspending, modifying, restoring or granting
the injunction, receivership, accounting, or
award of support. The stay of execution shall
be upon such terms as to bond or otherwise as
may be considered proper for the security or
protection of the rights of the adverse party.
[Sec. 1, Rule 39]
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Quashal of a writ of execution
General rule: The execution of final and
executory judgments may no longer be
contested and prevented, and no appeal
should lie therefrom. [1 Riano 609, 2016 Ed.]
Exception: These exceptional circumstances
may prevent the execution of a judgment or
allow the quashal of a writ of execution already
issued:
1. Improvidently issued
2. Defective in substance
3. Issued against wrong party
4. Issued without authority
5. Inequitable due to change in situation of
parties
6. Controversy was never validly submitted to
court [Sandico v. Piguing, G.R. No. L26115 (1971)]
7. The writ varies the terms of the judgment,
there is ambiguity in the terms of the
judgment or when it is sought to be
enforced against property exempt from
execution [Limpin v. IAC, G.R. No 70987
(1987)]
8. There is substantial variance between the
judgment and the writ of execution issued
to enforce the same [Malacora v. CA, G.R.
No. 51042 (1982)]
[1 Regalado 453, 2010 Ed.]
Note: These defects may be challenged on
appeal or in certiorari, prohibition or mandamus
actions. [Limpin v. IAC, G.R. No 70987 (1987)]
i. Execution as a Matter of Right
Execution as a matter of right is available in
two instances
1. Upon the expiration of the period to appeal
therefrom if no appeal has been duly
perfected.
2. Appeal has been duly perfected and finally
resolved.
[Sec. 1, Rule 39]
How done
1. If no appeal is perfected upon the
expiration of the period to appeal
therefrom, on motion.
REMEDIAL LAW
2. If the appeal has been duly perfected
and finally resolved, the execution may
a. Be applied for in the court of origin,
b. On motion of the judgment obligee,
c. Submitting certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the
entry thereof, with notice to the adverse
party.
[Sec. 1, Rule 39]
Necessity of hearing
An ex parte motion for the issuance of the writ
would suffice since the trial court may take
judicial notice of the record of the case to
determine the propriety of the issuance thereof.
However, where the losing party shows that
subsequent facts had taken place which would
render execution unjust, a hearing on the
motion should be held. [Luzon Surety Co. v.
Beson, G.R. No. L-26865-66 (1976)]
General rule:
Issuance of the writ of execution is a matter of
right on the part of the prevailing party when
the judgment or order becomes executory.
[1 Regalado 453, 2010 Ed.]
Exceptions:
The issuance of a writ of execution which
issues as a matter of right can be countered in
any of the following cases:
a. When the judgment has already been
executed by the voluntary compliance
thereof by the parties;
b. When a judgment has been novated by the
parties;
c. When a petition for review is filed and
preliminary injunction is granted; Also,
when execution of the judgment has been
enjoined by a higher court;
d. When the judgment sought to be executed
is conditional or incomplete;
e. When facts and circumstances transpire
which would render execution inequitable
or unjust;
f. When execution is sought more than five
(5) years from its entry without it having
been revived;
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g. When execution is sought against property
exempt from execution;
h. When refusal to execute the judgment has
become imperative in the higher interest of
justice.
[1 Riano 647-648, 2014 Bantam Ed.]
Supervening event doctrine
A supervening event can be invoked for the
modification or alteration of a final judgment.
This refers to:
a. Facts which transpire after judgment has
become final and executory;
b. New circumstances which developed after
the judgment has acquired finality;
c. Matters which the parties were not aware
of prior to or during the trial as they were
not yet in existence at that time.
The supervening facts or circumstances must
either
a. Bear a direct effect upon the matters
already litigated and settled, or
b. Create a substantial change in the rights or
relations of the parties therein which render
execution of the final judgment unjust,
impossible, or inequitable.
[Abrigo, et al. v. Flores, et al., G.R. No. 160786
(2013)]
ii. Discretionary Execution
The issuance of a writ of execution is
discretionary on the part of the court when it
is for the
a. Execution of a judgment or final order
pending appeal, or
b. Execution of several, separate, or partial
judgments.
[Sec. 2, Rule 39]
Note: The period to appeal where an MR has
been filed commences only upon the receipt of
a copy of the order disposing of the MR. The
pendency of the MR prevents the running of the
period to appeal. When there is a pending MR,
an order of execution pending appeal is
improper
and
premature.
[JP
Latex
Technology, Inc. v. Ballons Granger Balloons,
Inc., et al., G.R. No. 177121 (2009)]
REMEDIAL LAW
Discretionary execution is not applicable in
the case of the CA
A judgment of the CA cannot be executed
pending appeal [Heirs of Justice JBL Reyes v.
CA, G.R. No. 135180-81 (2000)]
Where motion filed
1. In the trial court
• While it has jurisdiction over the case
and is in possession of the original
record or record on appeal
2. In the appellate court
• After the trial court has lost jurisdiction.
[Sec. 2, Rule 39]
Requisites
1. Motion filed by the prevailing party with
notice to the adverse party,
2. Filed with either the trial court or appellate
court,
3. Hearing on the motion for discretionary
execution,
4. There must be good reasons to justify the
discretionary execution, and
5. The good reasons must be stated in a
special order.
[Sec. 2, Rule 39]
“Good reasons”
Compelling circumstances justifying the
immediate execution lest judgment becomes
illusory, or the prevailing party may after the
lapse of time become unable to enjoy it. [Far
East Bank v. Toh, G.R. No. 144018 (2003)]
Mere issuance of a bond to answer for
damages is no longer considered a good
reason for execution pending appeal. [Planters
Products v. CA, G.R. No. 106052 (1999)]
Mere allegation that the appeal is dilatory is not
a good reason to merit discretionary execution.
Nor is the fact that the prevailing party is in
financial distress. [Intramuros Tennis Club vs
CA, G.R. No. 135630 (2000)]
Examples of good reasons:
1. Where the goods subject of the judgment
stand to perish or deteriorate during the
pendency of the appeal. [Yasuda v. CA,
G.R. No. 112569 (2000)]
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2. The award of actual damages is for an
amount fixed and certain, but not an award
for moral and exemplary damages. [Radio
Communications Inc. v. Lantin, G.R. No. L59311 (1985)]
3. Insolvency of a defeated party. [Hacienda
Navarro v. Labrador, G.R. No. L-45912
(1938)]
4. The prevailing party is of advanced age
and in a precarious state of health and the
obligation in the judgment is nontransmissible, being for support. [De Leon
v. Soriano, G.R. No. L-7648 (1954)]
5. Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation. [Lao v. Mencias, G.R. No. L23554 (1967)]
Stay of discretionary execution
Discretionary execution issued may be stayed
upon approval by the proper court of a
sufficient supersedeas bond
a. Filed by the party against whom it is
directed, and
b. Conditioned upon the performance of the
judgment or order allowed to be executed
in case it shall be finally sustained in whole
or in part.
Note: The bond may be proceeded against on
motion with notice to the surety.
[Sec. 3, Rule 39]
Restitution - The property itself must be
returned to the judgment debtor, if the same is
still in the possession of the judgment creditor,
plus compensation to the former for the
deprivation and use of the property. [1
Regalado 467, 2010 Ed.]
Reparation of damages:
a. If the purchaser at the public auction
was the judgment creditor, pay the full
value of the property at the time of its
seizure plus interest
b. If the purchaser at public auction was a
third person, judgment creditor must pay
the judgment debtor the amount realized
from the sale with interest thereon; and
c. If the judgment award was reduced on
appeal, the judgment creditor must return
to the judgment debtor only the excess
which he received over and above that to
which he is entitled under the final
judgment, with interest on such excess.
[Po Pauco v. Tan Juco, G.R. No. L-63188
(1990)]
Remedy against discretionary execution
The remedy is certiorari by Rule 65.
Note: The fact that the losing party has also
appealed from the judgment does not bar
certiorari proceedings as the appeal could not
be an adequate remedy from such premature
execution. [Jaca v. Davao Lumber Co., G.R.
No. L-25771 (1982)]
General rule: The filing of a supersedeas
bond is sufficient to stay the enforcement of a
discretionary execution. [Sec. 3, Rule 39]
Exception: Where the needs of the
prevailing party are urgent, the Court can
order immediate execution despite such
supersedeas bond. [1 Regalado 466, 2010
Ed.]
If judgment is reversed totally or partially,
or annulled, on appeal or otherwise
The trial court may, on motion, issue such
orders of restitution or reparation of
damages as equity and justice may warrant
under the circumstances. [Sec. 5, Rule 39]
REMEDIAL LAW
c. How a Judgment is Executed
i. Execution by Motion
Independent Action
or
by
Modes of enforcement of execution
Mode
When enforced
Within 5 years from the
By motion
date of entry of judgment
After the lapse of 5
years from date of entry
By independent
and before it is barred
action
by
the
statute
of
limitations
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Note: The Statute of
Limitations is 10 years
from date of entry. [Art.
1144(3), CC].
[Sec. 6, Rule 39]
Revival of judgment
An action for revival of judgment is a procedural
means of securing the execution of a previous
judgment which has become dormant after the
passage of 5 years without it being executed
upon motion of the prevailing party. [Saligumba
vs Palanog, 573 SCRA 8, 15-16 (2008)]
The action must be filed within 10 years from
the date the judgment became final since the
action to enforce a judgment prescribes in 10
years from the finality of judgment. [Art.
1144(3), CC]
A revived judgment is deemed a new judgment
separate and distinct from the original
judgment. It is not a continuation. [PNB v.
Bondoc, G.R. No. L-20236 (1965)]
How enforced
A revived judgment may also be enforced the
same way. [Sec. 6, Rule 39]
Note: The 10-year prescriptive period
commences to run from the date of finality of
the revived judgment and not the original
judgment. [PNB v. Bondoc, G.R. No. L-20236
(1965)]
Time periods
The time periods provided may be stayed by:
a. Agreement of the parties for a definite time,
b. Injunction, or
c. Taking of an appeal or writ of error.
[Yau vs Silverio, and Macapagal v. Gako, 543
SCRA 520, 529 (2008)]
The periods shall not apply to:
a. Special proceedings, and
b. Judgments for support.
[Rodil v. Benedicto, 95 SCRA 137, (1980) and
Canonizado v. Benitez, 127 SCRA 610 (1984)]
REMEDIAL LAW
ii. Issuance and Contents of a Writ of
Execution
Contents of the writ of execution
The writ of execution is issued in the name of
the Republic of the Philippines and shall state:
1. The name of the court,
2. The case number and title,
3. The dispositive part of the subject
judgment or order, and
4. Shall require the sheriff or other proper
officer to whom it is directed to enforce the
writ according to its terms.
[Sec. 8, Rule 39]
Dispositive portion as subject of execution
The writ of execution should conform to the
dispositive portion of the decision to be
executed. [Ex-Bataan Veterans Security
Agency Inc vs NLRC, G.R. No. 121428 (1995)]
Issuance of a writ of execution
Effectivity
Such writ shall continue in effect during the
period within which the judgment may be
enforced by motion. [Sec. 14, Rule 39]
Note: A judgment may be enforced by motion
within 5 years from date of entry of judgment.
[Sec. 6, Rule 39]
Against whom issued
General rule: Only real parties in interest in
an action are bound by judgment rendered
therein and by the writs of execution.
Exceptions:
There are certain cases where the writ may be
issued against non-parties
a. One who is privy to judgment debtor can be
reached by an order of execution and writ
of demolition [Vda. De Medina v. Cruz,
G.R. No. L-39272 (1988)]
b. Issued against one who, not being
originally a party to the case, submits his
interest to the court for consideration in the
same case and invites adjudication
regarding said interest [Jose v. Blue, G.R.
No. L-28646 (1971)]
c. Where non-parties voluntarily signed the
compromise agreement or voluntarily
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appeared before court [Rodriguez v.
Alikpala, G.R. No. L-38314 (1974)]
Return of a writ of execution
a. Judgment satisfied within 30 days
The writ of execution shall be returnable to the
court issuing it immediately after the judgment
has been satisfied in part or in full. [Sec. 14,
Rule 39]
b. Judgment not satisfied within 30 days
1. The officer shall report to the court and
state the reason therefore.
2. The officer shall make a report to the
court every 30 days on the proceedings
taken thereon until the judgment is
satisfied in full, or its effectivity expires.
3. The returns or periodic reports shall set
forth the whole of the proceedings
taken, and shall be filed with the court
and copies thereof promptly furnished
the parties
[Sec. 14, Rule 39]
Entry of satisfaction of judgment
Satisfaction of a judgment shall be entered by
the COC in the court docket, and in the
execution book, upon the:
a. Return of a writ of execution showing the
full satisfaction of the judgment, or
b. Filing of an admission to the satisfaction of
the judgment executed and acknowledged
in the same manner as a conveyance of
real property by the judgment obligee or by
his counsel unless a revocation of his
authority is filed, or
c. Endorsement of such admission by the
judgment obligee or his counsel on the face
of the record of the judgment.
[Sec. 44, Rule 39]
The court may order the entry of satisfaction
even if the judgment was satisfied in fact or
otherwise than upon execution:
a. With admission of satisfaction by the
judgment obligee or counsel, or
• On demand of the judgment obligor,
such persons must execute and
acknowledge,
or
indorse,
the
admission
•
After notice and upon motion, the court
may order such persons to do so
b. Without admission of satisfaction.
[Sec. 45, Rule 39]
Effect of death of a party to execution
a. Death of the judgment obligee
- Will not prevent the execution of
judgment
- Execution will issue upon the
application
of
the
executor,
administrator, or successor in
interest.
b. Death of the judgment obligor
- Will not prevent execution of judgment
- Execution shall issue against his
executor, administrator, or successor
in interest.
[Sec. 7, Rule 39]
iii. Execution
Money
of
Judgments
for
If the award is for payment of money,
execution is enforced by
1. Immediate payment on demand,
2. Satisfaction by levy, or
3. Garnishment of debts and credits [Sec. 9,
Rule 39]
Note: Levy can only be made under Sec. 9 of
Rule 39
IMMEDIATE PAYMENT ON DEMAND
Procedure
1. The officer shall demand from the
judgment obligor the immediate payment of
the full amount stated in the writ of
execution and all lawful fees.
2. The judgment obligor shall pay in cash,
certified bank check payable to the
judgment obligee, or any other form of
payment acceptable to the latter, the
amount of the judgment debt under proper
receipt directly to the judgment obligee or
his authorized representative if present at
the time of payment.
3. The lawful fees shall be handed under
proper receipt to the executing sheriff
who shall turn over the said amount within
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the same day to the COC of the court that
issued the writ.
[Sec. 9(a), Rule 39]
Procedure if the judgment obligee or his
authorized representative is not present to
receive payment
1. The judgment obligor shall deliver the
aforesaid payment to the executing sheriff.
• Note: In no case shall the executing
sheriff demand that any payment by
check be made payable to him.
2. The executing sheriff shall turn over all
the amounts coming into his possession
within the same day to the COC of the court
that issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary
account
in
the
nearest
government depository bank of the. RTC of
the locality.
3. The COC shall thereafter arrange for the
remittance of the deposit to the account of
the court that issued the writ whose COC
shall then deliver said payment to the
judgment obligee in satisfaction of the
judgment.
4. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall
be retained by the COC for disposition as
provided by law.
[Sec. 9(a), Rule 39]
SATISFACTION BY LEVY
Definition
Levy is the act whereby:
a. A sheriff/officer sets apart or appropriates,
b. For the purpose of satisfying the command
of the writ,
c. A part or the whole of the judgment debtor’s
property.
[Fiestan v. CA, G.R. No. 81552 (1990)]
Condition before resort to satisfaction by
levy
If the judgment obligor cannot pay all or part of
the obligation in cash, certified bank check or
other mode of payment acceptable to the
judgment obligee. [Sec. 9(b), Rule 39]
REMEDIAL LAW
Procedure
1. The officer shall levy upon the properties
of the judgment obligor of every kind and
nature whatsoever which may be disposed
of for value and not otherwise exempt from
execution
2. The officer shall give the judgment obligor
the option to choose which property or
part thereof may be levied upon, sufficient
to satisfy the judgment.
3. If the judgment obligor does not exercise
the option, the officer shall first levy on the
personal properties, if any, and then on
the real properties if the personal
properties are insufficient to answer for
the judgment.
Note: The sheriff shall sell only a sufficient
portion of the personal or real property of the
judgment obligor which has been levied upon
and only so much of the personal or real
property as is sufficient to satisfy the judgment
and lawful fees.
How the levy is done
Real property, stocks, shares, debts, credits,
and other personal property, or any interest in
either real or personal property, may be levied
upon in like manner and with like effect as
under a writ of attachment.
[Sec. 9(b), Rule 39]
Note: If the judgment is for a sum of money
1. The judgment obligor dies before the
levy has been made on the property:
judgment cannot be enforced by writ of
execution. Instead, it should be filed as a
claim against the estate.
2. If the judgment obligor dies after the
entry of judgment but before levy on his
property: Execution will issue if it is for the
recovery of real/personal property.
[1 Regalado 475, 2010 Ed.]
“Break-open” order
An order from the court authorizing the sheriff
to destroy, demolish or remove improvements
on property subject of execution. [Sec. 10(d),
Rule 39]
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A special order of demolition is an order from
the court authorizing the sheriff to destroy,
demolish or remove improvements on property
subject of execution. It is issued upon hearing
and reasonable notice. Without one, the sheriff
cannot destroy, demolish, or remove any
improvements on the property.
[Guario v.
Ragsac, A.M. No. P-08-2571 (2009); see Sec.
10(d), Rule 39]
A writ of execution directing the sheriff to cause
the defendant to vacate is in the nature of a
habere facias possessionem and authorizes
the sheriff, without need of securing a
“break-open” order, to break open the
premises where there is no occupant therein.
[Arcadio v. Ylagan, A.M. No. 2734 (1986)]
Note: The rationale is that the writ of execution
itself is essentially an order to place the
prevailing party in possession of the property.
If the defendant refuses to surrender
possession of the property to the prevailing
party, the sheriff or other proper officer should
oust him. No express order to this effect needs
to be stated in the decision. [Guario v. Ragsac,
A.M. No. P-08-2571 (2009)]
GARNISHMENT OF DEBTS AND CREDITS
The process of levying shall be called
garnishment if the property involved is
money, stocks, or other incorporeal
property in the hands of third persons.
Note: Garnishment merely sets apart such
funds but does not constitute the creditor as
owner of the garnished property. [De la Rama
v. Villarosa, G.R. No. L-19727 (1963)]
Garnishment is not a violation of R.A. 1405
on the secrecy of bank deposits, as it does
not involve an inquiry or examination of such
deposit. [China Banking Corp. v. Ortega, G.R.
No. L-34964 (1973)]
What may be garnished
The officer may levy on
a. Debts due the judgment obligor and
b. Other credits, including
i.
Bank deposits
ii.
Financial interests,
iii.
iv.
v.
REMEDIAL LAW
Royalties
Commissions and
Other personal property not capable of
manual delivery in the possession or
control of third parties. [Sec. 9(c), Rule
39]
Procedure
1. Notice shall be served upon the person
owing such debts or having in his
possession or control such credits to which
the judgment obligor is entitled.
• Note: The garnishment shall cover only
such amount as will satisfy the
judgment and all lawful fees.
2. The garnishee shall make a written report
to the court within 5 days from service of
the notice of garnishment stating whether
or not the judgment obligor has sufficient
funds or credits to satisfy the amount of the
judgment. If not, the report shall state how
much funds or credits the garnishee holds
for the judgment obligor.
• Note: Upon service of the writ of
garnishment, the garnishee becomes a
“virtual party” or “forced intervenor” to
the case and the trial court thereby
acquires jurisdiction to bind the
garnishee to comply with its orders and
processes [BPI v. Lee, G.R. No.
190144 (2012)]
3. The garnished amount in cash, or
certified bank check issued in the name of
the judgment obligee, shall be delivered
directly to the judgment obligee within
10 working days from service of notice on
said garnishee requiring such delivery,
except the lawful fees which shall be paid
directly to the court.
4. In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have
the right to indicate the garnishee or
garnishees who shall be required to
deliver the amount due; otherwise, the
choice shall be made by the judgment
obligee.
5. The executing sheriff shall observe the
same procedure under Sec. 9(a), Rule 39
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with respect to delivery of payment to the
judgment obligee.
[Sec. 9(c), Rule 39]
iv. Execution of
Specific Acts
Judgments
for
Under Section 10, a party is directed to
execute conveyance of land or to deliver deeds
or other documents, or to perform any other
specific acts in connection therewith but
which acts can be performed by persons
other than said party. [1 Regalado 486, 2010
Ed.]
FOR CONVEYANCE OF REAL OF LAND OR
PERSONAL PROPERTY
Conditions
1. If a judgment directs a party to
a. Execute a conveyance of land or
personal property, or
b. Deliver deeds or other documents, or
c. Perform any other specific act in
connection therewith, and
2. The party fails to comply within the time
specified
[Sec. 10(a), Rule 39]
Procedure
1. The court may direct the act to be done at
the cost of the disobedient party by
some other person appointed by the court
and the act when so done shall have like
effect as if done by the party.
2. If real or personal property is situated within
the Philippines, the court may by an order
divest the title of any party and vest it in
others, which shall have the force and
effect of a conveyance executed in due
form of law.
[Sec. 10(a), Rule 39]
It is only when reconveyance is no longer
feasible (e.g. passed on to a buyer for value in
good faith, dissipated, etc.) that the judgment
obligor should pay the judgment obligee the fair
market value of the property. [Raymundo v.
Galen Realty and Mining Corp., G.R. No.
191594 (2013)]
REMEDIAL LAW
FOR SALE OF REAL OR PERSONAL
PROPERTY
If the judgment be for the sale of real or
personal property, [an order for execution shall
be issued] to:
a. Sell such property, describing it, and
b. Apply the proceeds in conformity with the
judgment.
[ Sec. 10(b), Rule 39]
FOR DELIVERY OR RESTITUTION OF REAL
PROPERTY
1. The officer shall demand of the person
against whom the judgment for the delivery
or restitution of real property is rendered
and all persons claiming rights under him
to peaceably vacate the property within 3
working days, and restore possession
thereof to the judgment obligee.
2. Otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, of appropriate peace officers,
and employing such means as may be
reasonably
necessary
to
retake
possession, and place the judgment
obligee in possession of such property.
3. Any costs, damages, rents or profits
awarded by the judgment shall be satisfied
in the same manner as a judgment for
money.
[Sec. 10(c), Rule 39]
REMOVAL
OF
IMPROVEMENTS
ON
PROPERTY SUBJECT OF EXECUTION
When the property subject of the execution
contains improvements constructed or planted
by the judgment obligor or his agent, the
officer shall not destroy, demolish or
remove said improvements except:
1. Upon special order of the court, issued
upon motion of the judgment obligee after
due hearing and
2. After the former has failed to remove the
same within a reasonable time fixed by the
court.
[Sec. 10(d), Rule 39]
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DELIVERY OF PERSONAL PROPERTY
In judgments for the delivery of personal
property, the officer shall:
a. Take possession of the same, and
b. Deliver it to the party entitled thereto and
satisfy any judgment for money as therein
provided. [Sec. 10(e), Rule 39]
v. Execution of Special Judgments
A special judgment under Section 12 requires
the performance of any act, other than the
payment of money or the sale or delivery or real
or personal property, which a party must
personally do because his personal
qualifications and circumstances have been
taken into consideration. [1 Regalado 486,
2010 Ed.]
When proper
A judgment requires performance of any other
act than those mentioned in Secs. 9 and 10
(payment of money or sale or delivery of
property). [Sec. 11, Rule 39]
Procedure
A certified copy of the judgment shall be
1. Attached to the writ of execution and
2. Served by the officer upon
a. The party against whom the same is
rendered, or
b. Any other person required thereby, or
by law, to obey the same, and
3. Such party or person may be punished for
contempt if he disobeys such judgment
[Sec. 11, Rule 39]
Examples:
a. A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital
[Vital-Gozon v. CA, G.R. No. 101428
(1992)]
b. A judgment directing the defendant to
remove a fence from a certain place is a
special judgment [Marquez v. Marquez,
G.R. No. 47792 (1941)]
vi. Effect of Levy on Third Person
The levy on execution shall create a lien in
favor of the judgment obligee over the right,
REMEDIAL LAW
title and interest of the judgment obligor in such
property at the time of the levy, subject to
liens and encumbrances then existing.
[Sec. 12, Rule 39]
Note: The power of the court in executing
judgments extends only over properties
unquestionably belonging to the judgment
debtor. [Corpuz v. Pascua, A.M. No. P-112972 (2011)]
A duly registered levy on attachment or
execution is preferred over a prior unregistered
sale. Under the Torrens system, the auction
sale of property retroacts to the date the levy
was registered; now, under Secs. 51 and 2 of
P.D. 1529, the act of registration is the
operative act to convey or affect the land
insofar as third persons are concerned. [Du v.
Stronghold Insurance Co. Inc., G.R. No.
156580 (2004)]
d. Properties
Execution
Exempt
from
General rule: The following property, and no
other, shall be exempt from execution:
a. The judgment obligor’s family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith
b. Ordinary
tools
and
implements
personally used by him in his trade,
employment, or livelihood
c. Three horses, or three cows, or three
carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation
d. His necessary clothing and articles for
ordinary personal use, excluding jewelry
e. Household furniture and utensils
necessary for house-keeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding PHP
100,000
f. Provisions for individual or family use
sufficient for four months
g. The
professional
libraries
and
equipment of judges, lawyers, physicians,
pharmacists,
dentists,
engineers,
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surveyors, clergymen, teachers, and other
professionals, not exceeding PHP 300,000
in value
h. One fishing boat and accessories not
exceeding the total value of PHP 100,000
owned by a fisherman and by the lawful
use of which he earns his livelihood
i. So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four
months preceding the levy as are
necessary for the support of his family
j. Lettered gravestones
k. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance
l. The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from the
Government
m. Properties specially exempted by law
[Sec. 13, Rule 39]
Examples of item (m) above
1. Property mortgaged to the DBP [Sec. 26,
CA 458]
2. Savings of national prisoners deposited
with the postal savings bank [Act. 2489]
3. Benefits from private retirement systems of
companies and establishments with
limitations [R.A. 4917]
4. Laborer’s wages except for debts incurred
for food, shelter, clothing and medical
attendance [Art. 1708, CC]
5. Benefit payments from SSS [Sec. 16, R.A.
1161, as amended]
Exception: No article or species of property
mentioned in Sec. 13, Rule 39 (enumerated
above) shall be exempt from execution issued
upon a
a. Judgment recovered for its price or
b. Judgment of foreclosure of a mortgage
thereon
[Sec. 13, Rule 39]
The exemptions must be claimed, otherwise
they are deemed waived. It is not the duty of
the sheriff to set off the exceptions on his own
initiative. [Herrera v. Mcmicking, G.R. No. L5329 (1909)]
REMEDIAL LAW
e. Proceedings Were Property is
Claimed by Third Persons; in
Relation to Third Party Claim in
Attachment and Replevin
Sec. 16, Rule 39 and other provisions providing
a mode for recovering property alleged to have
been wrongfully taken by sheriff pursuant to a
writ of execution or other process, refer to a
stranger to an action. [Tillson v. CA, G.R. No.
89870 (1991)]
Remedies of third-party claimant
a. Summary hearing before the court which
authorized the execution
b. “Terceria” or third-party claim filed with
the sheriff [Sec. 16, Rule 39]
c. Action for damages on the bond posted
by the judgment creditor
d. Independent Reinvindicatory action
Note: Such are cumulative remedies and may
be resorted to by a third-party claimant
independently of or separately from and
without need of availing of the others. [Sy v.
Discaya, G.R. No. 86301 (1990)]
For a third-party claim to be sufficient
a. Must be filed by a person other than the
defendant or his agent, at any time before
sale
b. Must be under oath or supported by
affidavit stating the claimant’s title to, or
right of possession of, the property, and
grounds therefor
c. Must be served upon the officer making
levy and a copy thereof upon the judgment
creditor
[Sec. 16, Rule 39]
On spouses
A spouse who was not a party to the suit but
whose conjugal property is being executed
because the other spouse is the judgment
obligor is not considered a stranger to the suit
and cannot file a separate action to question
the execution since they could have easily
questioned the execution in the main case
itself. [1 Regalado 501, 2010 Ed.]
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The institution of a separate action was allowed
when the property was the exclusive or
paraphernal property of a spouse who was
not a party to the case the judgment wherein
was sought to be executed. In such a situation,
the aggrieved spouse was deemed to be a
stranger to that main action. [Ching v. CA, G.R.
No. 118830 (2003)]
Effect of third-party claim
The officer shall not be bound to keep the
property, unless such judgment obligee, on
demand of the officer, files a bond approved by
the court to indemnify the third-party claimant
in a sum not less than the value of the property
levied on. [Sec. 16, Rule 39]
SUMMARY HEARING BEFORE COURT
AUTHORIZING EXECUTION
A third-person whose property was seized by a
sheriff to answer for an obligation of a judgment
debtor may invoke the supervisory power of the
court which authorized such execution. [Sy v.
Discaya, G.R. No. 86301 (1990)]
Procedure
a. Claimant files application
b. Court conducts summary hearing, and
c. The court may:
1. Command that the property be
released from the mistaken levy and
restored to rightful owner or possessor,
or
2. If the claimant's proofs do not
persuade, the claim will be denied by
the court.
The court determination is limited only to a
determination of whether the sheriff has acted
rightly or wrongly in performance of his duties.
The court does not and cannot pass upon the
question of title. [Sy v. Discaya, G.R. No. 86301
(1990)]
TERCERIA
When to file
Any time, as long as:
a. Sheriff has the possession of the property
levied upon, or
REMEDIAL LAW
b. Before the property shall have been sold
under execution.
Procedure
Claimant serves on the officer making levy an
affidavit of his title and a copy thereof to
judgment creditor.
[Sec. 16, Rule 39]
Bond
To enforce a claim for damages against the
bond, the action must be filed within 120 days
from the filing of the bond.
The officer shall not be liable for damages
for the taking or keeping of the property, to any
third-party claimant if such bond is filed.
When bond not required
When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
not be required.
Note: If sheriff or levying officer is sued for
damages,
a. He shall be represented by the Solicitor
General, and
b. If held liable, the actual damages adjudged
by the court shall be paid by the National
Treasurer out of such funds as may be
appropriated for the purpose.
[Sec. 16, Rule 39]
The right of a third-party claimant to file a
terceria is founded on his title or right of
possession. Corollary thereto, before the court
can exercise its supervisory power to direct the
release of the property mistakenly levied and
the restoration thereof to its rightful owner, the
claimant must first unmistakably establish his
ownership or right of possession thereon.
[Villasi v. Garcia, G.R. No. 190106 (2014)]
REIVINDICATORY ACTION
Nothing contained in Sec. 16, Rule 39 shall
prevent such claimant or any third person from
vindicating his claim to the property in a
separate action, or prevent the judgment
obligee from claiming damages in the same or
a separate action against a third-party claimant
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who filed a frivolous or plainly spurious claim.
[Sec. 16, Rule 39]
Procedure
He must institute an action, distinct and
separate from that which the judgment is being
enforced, with the court of competent
jurisdiction
• In such ation, the validity and sufficiency of
title of the claimant will be resolved.
• A writ of preliminary injunction against the
sheriff may be issued.
Note: No need to file a claim in the court which
issued a writ. The latter is not a condition sine
qua non for the former.
[Sy v. Discaya, G.R. No. 86301 (1990)]
IN RE: THIRD PARTY CLAIMS IN
ATTACHMENT AND REPLEVIN
If the claim is filed under Sec. 16, Rule 39, it
must be filed in a separate action instituted for
the purpose. Intervention is no longer allowed
since judgment has already been rendered. [1
Regalado 500-501, 2010 Ed.]
If it is filed under Sec. 14, Rule 57
(Attachment) or under Sec. 7, Rule 60
(Replevin), the claim may be litigated in the
same action involved or in a separate suit.
Intervention is allowed. [1 Regalado 501, 2010
Ed.]
The reason for the difference is that the
judgment in the case subject of Sec. 16, Rule
39 is already final and executory, while Rules
57 and 60 involve actions still pending in
the trial court. [1 Regalado 501, 2010 Ed.]
f. Rules on Redemption
When available
Only for real property, since nothing in the
ROC provides for redemption of personal
property. [Sec. 27, Rule 39]
Who may redeem
a. Judgment obligor, or his successor in
interest in the whole or any part of the
property
REMEDIAL LAW
b. A creditor (redemptioner) having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold.
[Sec. 27, Rule 39]
If the lien of the creditor is prior to the
judgment under which the property was sold:
a. He is not a redemptioner;
b. He cannot redeem since his interests in his
lien are fully protected. Any purchaser at a
public auction takes the same subject to
such prior lien which he has to satisfy.
[1 Regalado 512, 2010 Ed.]
Proof required of redemptioner
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and
serve with his notice to the officer
a. A copy of the judgment or final order under
which he claims the right to redeem,
certified by the clerk of the court wherein
the judgment or final order is entered; or,
b. If he redeems upon a mortgage or other
lien,
1. A memorandum of the record thereof,
certified by the registrar of deeds; or an
original or certified copy of any
assignment necessary to establish his
claim; and
2. An affidavit executed by him or his
agent, showing the amount then
actually due on the lien. [Sec. 30, Rule
39]
When redemption can be made
Who
When
Within 1 year from the
By the judgment
date of registration of
obligor
the certificate of sale
Within 1 year from the
By
first
date of registration of
redemptioner
the certificate of sale
By all subsequent Within 60 days from
redemptioners
last redemption
[Sec. 28, Rule 39]
Note: There is no extension or interruption of
redemption period. [Sec. 28, Rule 39]
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Redemption price
a. By the judgment debtor or first
redemptioner:
1. Purchase price,
2. 1% interest thereon up to time of
redemption,
3. Any amount of assessments or taxes
which purchaser may have paid after
purchase and interest on such last
named amount at the same rate, and
4. If the purchaser is also a creditor
having a prior lien to that of a
redemptioner, other than the judgment
under which such purchase was made,
the amount of such other lien, also with
interest.
b. By all subsequent redemptioners:
1. Amount paid on last redemption,
2. 2% interest thereon,
3. Any amount of assessments or taxes
which purchaser may have paid after
purchase as well as interest on such
last named amount at the same rate,
and
4. The amount of any liens held by said
last redemptioner prior to his own, also
with interest.
[Sec. 28, Rule 39]
If redemption is made by the judgment
obligor
a. No further redemption is allowed, and
b. He is restored to his estate.
[Sec. 29, Rule 39]
Note: When a judgment debtor redeems the
property, what is effected is the elimination of
the lien created by the levy on attachment or
judgment on the registration of mortgage
thereon. Note that he never lost ownership so
there is no recovery of ownership. [1 Regalado
513, 2010 Ed.]
Payment of redemption price may be made
to the:
a. Purchaser or redemptioner, or
b. For him to the officer who made the sale
[Sec. 29, Rule 39]
REMEDIAL LAW
Duties upon redemption
The person to whom the redemption payment
is made must execute and deliver to him a
certificate of redemption.
a. Acknowledged before a notary public or
other
officer
authorized
to
take
acknowledgments of conveyances of real
property.
b. Filed and recorded in the registry of deeds
of the place in which the property is
situated, and
c. The registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale.
[Sec. 29, Rule 39]
RIGHTS PENDING REDEMPTION
Right of judgment obligee
Apply for injunction to restrain the commission
of waste on the property. [Sec. 31, Rule 39]
It is not waste for a person in possession of
the property at the time of the sale, or entitled
to possession afterwards, during the period
allowed for redemption, to
a. Continue to use it in the same manner in
which it was previously used
b. Use it in the ordinary course of husbandry,
or
c. Make the necessary repairs to buildings
thereon while he occupies the property
[Sec. 31, Rule 39]
Expiration of period to redeem
a. II no redemption be made within 1 year
from the date of the registration of the
certificate of sale, the purchaser is entitled
to a conveyance and possession of the
property; or,
b. If so redeemed whenever 60 days have
elapsed and no other redemption has
been made, and notice thereof given, and
the time for redemption has expired, the
last redemptioner is entitled to the
conveyance and possession.
General Rule: Under the expiration of the right
of redemption, the purchaser or redemptioner
shall be substituted to and acquire all the rights,
title, interest and claim of the judgment obligor
to the property as of the time of the levy -
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possession of the property shall be given to
the purchaser or last redemptioner by the
same officer
Exception: A third party is actually holding the
property adversely to the judgment obligor.
[Sec. 33, Rule 39]
Two documents which the sheriff executes
in case of real property
a. Certificate of sale
1. Upon a sale of real property, the officer
must give to the purchaser a certificate
of sale containing:
i.
A particular description of the real
property sold;
ii.
The price paid for each distinct lot
or parcel;
iii.
The whole price paid by him; and
iv.
A statement that the right of
redemption expires one year from
the date of the registration of the
certificate of sale
2. Must be registered in the registry of
deeds of the place where the property
is situated. [Sec. 25, Rule 39] - From
registration of said certificate, the 1
year redemption period starts [Sec. 28,
Rule 39]
3. Certificate of sale after execution sale
is merely a memorial of the fact of sale
and does not operate as conveyance [1
Regalado 508, 2010 Ed.]
b. Deed of Conveyance
1. Executed upon the expiration of the
period to redeem.
Note: The purchaser or redemptioner
shall be substituted to and acquire all
the rights, title, interest and claim of the
judgment obligor to the property as of
the time of the levy.
2. Executed by the officer making the
sale.
3. Under the expiration of the right of
redemption,
[Sec. 33, Rule 39]
Note: Hence, the certificate of sale of real
property does not confer any right to the
possession or ownership, of the real property
purchased. It is the deed of sale executed by
REMEDIAL LAW
the sheriff at the expiration of the period of
redemption which entitles the purchaser to
possession of the property sold. [1 Regalado
508, 2010 Ed.]
Recovery of purchase price if sale not
effective
a. If the purchaser of real property sold on
execution, or his successor in interest,
• Fails to recover the possession thereof,
or
• Is evicted therefrom, in consequence of
irregularities in the proceedings
concerning the sale, or
b. Because the judgment has been reserved
or set aside, or
c. Because the property sold was exempt
from execution, or
d. Because a third person has vindicated his
claim, to the property,
The purchaser may, on motion in the same
action or in a separate action,
a. Recover from the judgment obligee the
price paid, with interest, or so much thereof
as has not been delivered to the judgment
obligor; or
b. Have the original judgment revived in his
name for the whole price with interest, or
so much thereof as has been delivered to
the judgment obligor.
Note: The judgment so revived shall
have the same force and effect as an
original judgment would have as of the
date of the revival and no more.
[Sec. 34, Rule 39]
Note: A purchaser’s right of possession is
recognized only as against the judgment
debtor and his successor-in-interest. It is not so
against persons whose right of possession is
adverse. When a third party is in possession
of the property purchased, the possession is
presumed to be based on just title - a
presumption which may be overcome by the
purchaser in a judicial proceeding for recovery
of the property. [Villanueva v. Cherdan
Lending Investors Corp., G.R. No. 177881
(2010)]
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g. Examination
of
Judgment
Obligor When Judgment is
Unsatisfied
When applicable
When the return of the writ issued against
property of a judgment obligor shows that
judgment remains unsatisfied. [Sec. 36, Rule
39]
Procedure
The judgment obligee, at any time after such
return is made, shall be entitled to an order
from the court which rendered the said
judgment
a. Requiring such judgment obligor to appear
and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a
specified time and place; and
b. Proceedings may thereupon be had for the
application of the property and income of
the judgment obligor towards the
satisfactions of the judgment.
When judgment obligor not required to
appear/ be examined
a. When he is required to appear before a
court or commissioner outside the province
or city in which such obligor resides or is
found. [Sec. 36, Rule 39]
b. After the lapse of the five years within
which a judgment may be enforced by
motion. [Umali v. Coquia, G.R. No. L46303 (1988)]
Order for payment in fixed monthly
installments
If upon investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are
more than necessary for the support of his
family, the court may order that:
a. He pay the judgment in fixed monthly
installments, and
b. Upon his failure to pay any such installment
when due without good excuse, may
punish him for indirect contempt.
[Sec. 40, Rule 39]
REMEDIAL LAW
h. Examination of Obligor
Judgment Obligor
of
When applicable
a. When the return of a writ of execution
against the property of a judgment obligor
shows that the judgment remains
unsatisfied, in whole or in part, and
b. Upon proof that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him.
[Sec. 37, Rule 39]
Procedure
The court may, by an order
a. Require such person, corporation, or other
juridical entity, or any officer or member
thereof, to appear before the court or a
commissioner appointed by it, at a time and
place within the province or city where such
debtor resides or is found, and
b. Be examined concerning the same.
Effect of order
The service of the order shall
a. Bind all credits due the judgment obligor
and all money and property of the judgment
obligor in the possession or in the control
of such person, corporation, or juridical
entity from the time of service, and
b. The court may also require notice of such
proceedings to be given to any party to the
action in such manner as it may deem
proper. [Sec. 37, Rule 39]
Note: This is not applicable if there is no issue
concerning the indebtedness of the bank and
there is no denial by the depositor of the
existence of the deposit with the bank which is
considered a credit in favor of the depositor
against the bank. [PCIB v. CA, G.R. No. 84526
(1991)]
When alleged obligor denies debt or claims
property
The court may
a. Authorize the judgment obligee to institute
an action against such person or
corporation for the recovery of such
interest or debt,
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b. Forbid a transfer or other disposition of
such interest or debt within 120 days from
notice of the order, and
c. May punish disobedience of such order as
for contempt.
[Sec. 43, Rule 39]
Impropriety of an action for damages as a
remedy
Where the writ of execution is unsatisfied,
the remedy to enforce it is Secs. 38-39, and not
a complaint for damages. [Phil. Transmarine
Carriers v. CA, G.R. No. 122346 (2000)]
OTHER REMEDIES
Order for application of property or income
The court may order any property of the
judgment obligor, or money due him, not
exempt from execution, in the hands of either
himself or another person, or of a corporation
or other juridical entity, to be applied to the
satisfaction of the judgment, subject to any
prior rights over such property. [Sec. 40, Rule
39]
After a writ of execution against property has
been issued, a person indebted to the
judgment obligor may pay to the sheriff
holding the writ of execution the amount of
his debt or so much thereof as may be
necessary to satisfy the judgment, in the
manner prescribed in Sec. 9, Rule 39 and the
sheriffs receipt shall be a sufficient discharge
for the amount so paid or directed to be
credited by the judgment obligee on the
execution [Sec. 39, Rule 39]
Appointment of receiver
The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of,
or any interference with, the property of the
judgment obligor not exempt from execution.
[Sec. 41, Rule 39]
If it appears that the judgment obligor has an
interest in real estate in the place in which
proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest
therein
can
be
ascertained
without
controversy, the receiver may be ordered to
REMEDIAL LAW
sell and convey such real estate or the
interest of the obligor therein; and such sale
shall be conducted in all respects in the same
manner as is provided for the sale of real estate
upon execution, and the proceedings thereon
shall be approved by the court before the
execution of the deed. [Sec. 42, Rule 39]
i. Effect of Judgment or Final
Orders
Immutability of judgments
A judgment that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect, even
if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that rendered
it or by the Highest Court of the land. [PNB v.
Spouses Maranon, G.R. No. 189316 (2013)]
Rationale
a. To avoid delay in the administration of
justice, and procedurally to make orderly
the discharge of judicial business, and
b. To put an end to judicial controversies at
the risk of occasional errors.
[PCI Leasing and Finance, Inc. v. Milan, G.R.
No. 151215 (2010)]
RES JUDICATA
Dual aspect
a. Bar by former judgment
1. The judgment or final order is a bar to
the prosecution of a subsequent action
based on the same claim or cause of
action
2. Described by Sec. 47, pars. (a) and (b),
Rule 39
3. Also known as “Estoppel by Verdict”
b. Conclusiveness of judgment
1. The judgment or final order precludes
the relitigation of particular issues or
facts on a different demand or cause of
action
2. Described by Sec. 47, par. (c), Rule 39
3. Also known as the Rule of Auter Action
Pendant
[1 Riano 541, 2011 Ed.; 1 Regalado 529, 2010
Ed.]
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Bar by former
judgment
Requires identity of
parties,
subject
matter, and causes
of action
CIVIL PROCEDURE
Conclusiveness of
judgment
There is only identity
of parties and subject
matter
Causes of action are
different
Absolute Bar to:
(a)
all
matters Conclusive as to
directly adjudged; matters
directly
and
adjudged
and
(b) those that might actually litigated
have been adjudged
Claim Preclusion
Issue Preclusion
[1 Riano 683-684, 2011 Ed.]
The rule of res judicata applies to final
decisions of quasi-judicial agencies and to
judgments rendered in probate proceedings [1
Regalado 534, 2010 Ed.]
BAR BY FORMER JUDGMENT
The judgment or decree of a court of competent
jurisdiction on the merits concludes the parties
and their privies to the litigation and constitutes
a bar to a new action or suit involving the same
cause of action either before the same or any
other tribunal. [Machoca v. Cariaga, G.R. No.
75109-10 (1989)]
Requisites
a. A final judgment or order
b. Jurisdiction over the subject matter and the
parties by the court rendering judgment
c. Judgment upon merits
d. Between the two cases, there is identity of:
1. Parties
2. Subject matter
3. Cause of action
[1 Riano 430, 2011 Ed.]
General rule: For res judicata to apply, trial
must be made on the merits of the case [1
Regalado 530, 2010 Ed.]
Exception: Sec. 3, Rule 17: Dismissal upon
fault of plaintiff - If plaintiff fails to appear at
the time of the trial, or to prosecute his action
for an unreasonable length of time, or to
REMEDIAL LAW
comply with these rules or any order of the
court, the action may be dismissed upon
motion of the defendant or upon the court's
own motion. This dismissal shall have the
effect of an adjudication upon the merits,
unless
otherwise
provided
by
court
[Development Bank v. CA, G.R. No. 110203
(2001)]
Res judicata in judgments in rem
Judgments or final
Conclusive as to
order
Against a specific
Title of the thing
thing
Probate of a will or
administration of the The
will
or
estate of a deceased administration
person
In respect to the
personal, political, or
legal condition or Condition, status or
status of a particular relationship of the
person
or
his person
relationship
to
another.
[1 Riano 542, 2011 Ed.]
Res judicata in judgments in personam
In other cases, the judgment or final order is,
with respect to the matter directly adjudged or
as to any other matter that could have been
missed in relation thereto, conclusive
between
a. The parties and
b. Their successors in interest, by title
subsequent to the commencement of the
action or special proceeding, litigating for
the same thing and under the same title
and in the same capacity
[Sec. 47(b), Rule 39]
CONCLUSIVENESS OF JUDGMENT
Any right, fact or matter in issue directly
adjudicated or necessarily involved in the
determination of an action before a competent
court in which a judgment or decree is rendered
on the merits is conclusively settled by the
judgment therein and cannot again be
litigated between the parties and their privies
whether or not the claim or demand, purpose
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or subject matter of the two suits is the same.
[Machoca v. Cariaga, G.R. No. 75109-10
(1989)]
(1971);
Vergara v.
Roque, G.R.
No. L-32984
(1977)]
REMEDIAL LAW
case need
not
be
followed as a
precedent in
subsequent
litigation
between
other parties.
[1 Riano 544,
2011 Ed]
the
same
legal issue is
raised.
[CDCP
Mining Corp.
v. CIR, G.R.
No. 122213
(2005)]
Requisites
a. A final judgment or order
b. Jurisdiction over the subject matter and the
parties by the court rendering it
c. Judgment upon merits
d. Between the two cases, there is identity of:
1. Parties, and
2. Issues.
[1 Regalado 529-531, 2010 Ed.]
1.
Res judicata, law of the case, and stare
decisis
a. Stare decisis - When the SC has laid down
a principle of law applicable to a certain
state of facts, it will adhere to that principle
and apply it to all future cases where the
facts are substantially the same. [1 Riano
533, 2011 Ed.]
b. Law of the case - Whatever is once
irrevocably established as the controlling
legal rule or decision between the same
parties in the case continues to be the law
of the case whether correct on general
principles or not, so long as the facts on
which such decision was predicated
continue to be the facts of the case before
the court. [1 Riano 544, 2011 Ed.]
A valid judgment rendered by a foreign
tribunal may be recognized insofar as the
immediate parties the underlying cause of
action are concerned so long as it is
convincingly shown that:
a. There has been an opportunity for a fair
hearing before a court of competent
jurisdiction,
b. Trial upon registered proceedings has
been conducted, and
c. There is nothing to indicate either a
prejudice in court and in the system of laws
under which it is sitting or fraud in procuring
the judgment.
[Philippine Aluminum v. Fasgi Enterprises,
G.R. No. 137378 (2000)]
Res
judicata
The parties
and
the
causes
of
action in both
actions are
identical or
substantially
the same.
[1 Regalado
530,
2010
Ed.,
citing
Yusingco
v.Ong Hing
Lian,
G.R.
No. L-26523
Law of the
case
Operates
only in the
particular
and
single
case where
the
ruling
arises and is
not carried
into
other
cases as a
precedent.
The
ruling
adhered to in
the particular
Stare
decisis
Once a point
of law has
been
established
by the court,
that point of
law
will,
generally, be
followed by
the
same
court and by
all courts of
lower rank in
subsequent
cases where
Enforcement and Effect of Foreign
Judgments or Final Orders
Purpose
a. To avoid repetitive litigation on claims and
issues,
b. Prevent harassment of the parties, and
c. Avoid undue imposition on the courts.
[1 Regalado 536, 2010 Ed.]
Basis
This policy of preclusion rests on principles of
comity, utility and convenience of nations. [1
Regalado 536, 2010 Ed., see also Raytheon
International, Inc. v. Rouzie, Jr., G.R. No.
162894 (2008)]
As a generally accepted principle of
international law, it is part of the law of the
Philippines by virtue of the Incorporation
Clause. [Sec. 2, Art. II, 1987 Constitution, 1
Page 166 of 525
U.P. LAW BOC
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CIVIL PROCEDURE
Regalado 536, 2010 Ed. citing Raytheon v.
Rouzie, G.R. No. 162894 (2008)]
Nature
The civil action for enforcement of a foreign
judgment is one incapable of pecuniary
estimation.
• Although the foreign judgment may result
in recovery of money or property, the
cause of action and subject matter of
the civil action is the foreign judgment
itself (and not, as in an ordinary action for
monetary relief, the violation of a right
through an act or omission). The matter left
for proof is the foreign judgment itself, not
the facts from which it prescinds. [1
Regalado 536, 2010 Ed.]
Effect of foreign judgments [Sec. 48, Rule
39]
Nature
Effect
In
judgments Judgment
is
against a specific conclusive upon the
thing (in rem)
title to the thing
Judgment
is
presumptive
In
judgments evidence of a right as
against a person (in between parties and
personam)
their successors-ininterest
by
a
subsequent title
In both cases, judgment may be repelled by
evidence of
a. Want of jurisdiction,
b. Want of notice,
c. Collusion,
d. Fraud, or
e. Clear mistake of law or fact. [Sec. 48, Rule
39]
A foreign judgment is presumed to be valid
and binding in the country from which it
comes, until a contrary showing, on the basis
of a presumption of regularity of proceedings
and the giving of due notice in the foreign
forum. [Asiavest Merchant Bankers v CA, G.R.
No 110263 (2001)]
Before our courts can give the effect of res
judicata to a foreign judgment, it must be
shown that the parties opposed to the
judgment had been given ample opportunity to
do so on grounds under Section 48 of Rule 39
of the ROC. [Roehr v. Rodriguez, G.R. No.
142480
(2003)]
D.
PROVISIONAL
REMEDIES
1. NATURE AND PURPOSE
Nature of provisional remedies
They are temporary, auxiliary, and ancillary
remedies available to a litigant for the
protection and preservation of his rights while
the main action is pending. They are writs and
processes which are not main actions and are
dependent for their application on the
existence of a principal action. [1 Regalado
684, 2010 Ed.]
Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may however
be challenged before a superior court through
a petition for certiorari under Rule 65. [PahilaGarrido v. Tortogo, et. al., G.R. No. 156358
(2002)]
Purpose of provisional remedies
a. To preserve or protect litigants’ rights or
interests during the pendency of the
principal action;
b. To secure the judgment;
c. To preserve the status quo of the the things
subject to the action or the relation
between the parties; and
d. To preserve the subject matter of the
action. [2 Riano 2, 2016 Bantam Ed.]
Kinds of provisional remedies
a. Preliminary attachment [Rule 57]
b. Preliminary injunction [Rule 58]
c. Receivership [Rule 59]
d. Replevin [Rule 60]
e. Support pendente lite [Rule 61]
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Note: The enumeration above is not exclusive.
The court may invoke its equity jurisdiction and
order the appropriate reliefs during the
pendency of an action. [Reyes v. Lim, G.R. No.
134241 (2003)]
2. JURISDICTION
OVER
PROVISIONAL REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction
over the main action. [1 Regalado 685, 2010
Ed.] Thus, where the main case is pending in a
specific RTC, it is the same court, not any other
court, which may grant the provisional remedy
applied for. [2 Riano 5, 2016 Bantam Ed.]
The authority to grant provisional remedies is
not the sole prerogative of superior courts.
Inferior courts may also grant all appropriate
provisional remedies in an action pending with
it and is within its jurisdiction. In fact, the
jurisdiction of the MTC includes the “grant of
provisional remedies in the proper cases.”
[Sec. 33 (1), B.P. 129]
3. PRELIMINARY ATTACHMENT
Definition
Attachment is defined as a provisional remedy
by which the property of an adverse party is
taken into legal custody, either at the
commencement of an action or at any time
thereafter, as a security for the satisfaction of
any judgment that can be recovered by the
plaintiff or any proper party. [Northern Islands
v. Garcia, GR No. 203240 (2015)]
Purposes
1. To seize the property of the debtor in
advance of final judgment and to hold it for
purposes of satisfying said judgment, as in
the grounds stated in Sec. 1(a) to (e), Rule
57, or
2. To acquire jurisdiction over the action
by actual or constructive seizure of the
property in those instances where personal
or substituted service of summons on the
defendant cannot be effected, as in Sec.
REMEDIAL LAW
1(f), Rule 57 [PCIB v. Alejandro, G.R. No.
175587 (2007)]
Note: Being a mere ancillary to a principal
proceeding, the attachment must fail if the
principal suit itself cannot be maintained.
Another consequence is that where the main
action is appealed, the attachment is also
considered appealed and is removed from the
jurisdiction of the lower court. [2 Riano 12, 2016
Bantam Ed.]
a. Grounds for Issuance of Writ of
Attachment
When Preliminary Attachment may be
Applied For
An order for preliminary attachment may be
applied for
a. At the commencement of the action, or
b. At any time before entry of judgement.
[Sec. 1, Rule 57]
Who may apply
It may be applied for by
a. The plaintiff, or
b. Any proper party. [Sec. 1, Rule 57]
• Any proper party includes a defendant
who filed a counterclaim, cross-claim,
or a third party complaint [Sec. 1, Rule
3]
Grant of Preliminary Attachment is
Discretionary
The grant of the remedy of preliminary
attachment is addressed to judicial
discretion. There is nothing in Rule 57 which
indicates that the grant of such writ is a matter
of right on the part of the applicant. [2 Riano 13,
2016 Bantam Ed.]
Strict Construction
Since preliminary attachment opens up the
debtor to humiliation and annoyance, it may
only be granted when necessary and as a last
resort on concrete and specific grounds. [2
Riano 14, 2016 Bantam Ed.]
Grounds for Issuance
Under Sec. 1, Rule 57, the grounds for a
preliminary attachment are, to wit:
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a. For the recovery of a specified amount of
money or damages, other than moral and
exemplary, on a cause of action arising
from law, contract, quasi-contract, delict or
quasi-delict against a party who is about
to depart from the Philippines with
intent to defraud his creditors.
• It is not sufficient to show that the party
against whom the writ is sought to be
issued is about to depart from the
country. It must be shown that such
departure was with “intent to defraud
his creditors”. [2 Riano 20, 2016
Bantam Ed.]
1. Service to defendants where his
identity or whereabouts are
unknown. [Sec. 16, Rule 14]
2. Service when the defendant does
not reside and is not found in the
Philippines, and the action
o Affects the personal status of
the plaintiff or
o 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
o In which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
o The property of the defendant
has been attached within the
Philippines. [Sec. 17, Rule 14]
3. Service to juridical entities not
registered or have no resident
agent but have transacted or are
doing business in the Philippines
[Sec. 14, Rule 14]
b. For money or property embezzled or
fraudulently misapplied or converted to
his own use by a public officer, or an
officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course
of his employment as such, or by any
other person in a fiduciary capacity, or
for a willful violation of duty.
• A fiduciary duty is one “founded in trust
and confidence”. [2 Riano 21, 2016
Bantam Ed.]
c.
To recover the possession of property
unjustly or fraudulently taken, detained
or converted, when the property, or any
part thereof, has been concealed,
removed, or disposed of to prevent its
being found or taken by the applicant or an
authorized person.
d. Against a party who has been guilty of
fraud in contracting the debt or incurring
the obligation upon which the action is
brought, or in the performance thereof.
e. Against a party who has removed or
disposed of his property, or is about to
do so, with intent to defraud his creditors.
f.
Against a party who does not reside and
is not found in the Philippines, or on
whom summons may be served by
publication.
• Under the Amended Rules, summons
can be served via publication only in
the following cases:
REMEDIAL LAW
Note: The aforementioned grounds are
exclusive in nature. No other ground can
serve as the basis of a preliminary attachment.
[PCIB v. Alejandro, G.R. No. 175587 (2007)]
Three stages in the grant of preliminary
attachment
a. Court issues the order granting the
application,
b. Writ of attachment issues pursuant to the
order granting the writ, and
c. The writ is implemented. [1 Regalado 692,
2010 Ed.]
• In this stage, the court must have
already acquired jurisdiction over the
person of the defendant because the
court has no power over the property of
the defendant without such jurisdiction.
Hence,
the
rule
on
prior/contemporaneous service of
summons (to be discussed below). [2
Riano 33, 2016 Bantam Ed.]
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b. Requisites for
Order
of
Attachment
CIVIL PROCEDURE
Issuance of
Preliminary
In order for the court to issue an order of
preliminary attachment, the applicant must file
a motion with notice and hearing by the court
in which the action is pending.
However, the court may nonetheless issue an
order of attachment ex parte. [Sec. 2, Rule 57]
Requisites
Regardless of whether the order was granted
through motion or ex parte, the following are
the requisites for the issuance of an order of
preliminary attachment, to wit:
a. The applicant, or some other who
personally knows the facts, must file an
affidavit.
b. Applicant must post a bond executed to
the adverse party in the amount fixed by
the court in its order granting the issuance
of the writ. [Secs. 3-4, Rule 57]
c. Issuance and Contents of Order
of Attachment; Affidavit and
Bond
Contents of the order of attachment
It must:
a. Require the sheriff of the court to attach
so much of the property in the Philippines
of the party against whom it is issued, not
exempt from execution, as may be
sufficient to satisfy the applicant’s demand
b. Fix the amount of deposit or bond, which
may be the
1. Amount sufficient to satisfy the
applicant’s demand or
2. Value of the property to be attached as
stated by the applicant, exclusive of
costs. [Sec. 2, Rule 57]
First requisite of an order of attachment Affidavit
An order of attachment shall be granted only
when the affidavit of the applicant, or of some
other person who personally knows the facts,
alleges that:
a. A sufficient cause of action exists,
REMEDIAL LAW
b. The case is one of those mentioned in Rule
57, Sec. 1
c. There is no other sufficient security for the
claim sought to be enforced by the action,
and
• Therefore, if a mortgage exists to
secure the obligation, a writ of
preliminary attachment cannot be
granted. [2 Riano 30, 2016 Bantam
Ed.]
d. the amount due to the applicant, or the
value of the property the possession of
which he is entitled to recover, is as much
as the sum for which the order is granted
above all legal counterclaims. [Sec. 3, Rule
57]
Second requisite of an order of attachment
- Bond
The party applying for the order of attachment
must likewise give a bond executed to the
adverse party. The amount of such bond is the
amount fixed by the court in the order of
attachment. [Sec. 4, Rule 57]
Conditions of applicant’s bond
The party applying for the order will pay all the
costs which may be adjudged to the adverse
party and all damages which he may sustain
by reason of the attachment, if the court shall
finally adjudge that the applicant was not
entitled thereto. [Sec. 4, Rule 57]
Note: The bond shall only be applied to all
damages and costs sustained due to the
attachment. [Excellent Quality Apparel v.
Visayan Surety & Insurance Corp., G.R. No.
21205 (2015)]
d. Rule
on
Prior
or
Contemporaneous Service of
Summons
General rule: The sheriff is not allowed to
make a levy on attachment if such levy is not
made with prior or contemporaneous
service of the following:
a. Service of summons
b. Copy of the complaint
c. Application for attachment
d. Applicant’s affidavit and bond, and
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e. Order for writ of attachment. [Sec. 5, Rule
57]
b.
c.
Exceptions: Levy on attachment would be
justified
even
without
prior
or
contemporaneous summons under the
following circumstances:
a. Summons could not be served personally
or by substituted service despite diligent
efforts, or
b. Defendant is a resident of the Philippines
temporarily absent therefrom, or
c. Defendant is a non-resident of the
Philippines, or
d. The action is in rem or quasi in rem. [Sec.
5, Rule 57]
e. Manner of Attaching Real and
Personal
Property;
When
Property Attached is Claimed
by Third Person
General rule: The sheriff enforcing the writ
shall without delay and with all reasonable
diligence attach, to await judgment and
execution in the action, only so much of the
property in the Philippines of the party against
whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant’s demand.
• The sheriff is precluded from attaching
any property exempt from execution,
such as those enumerated in Sec. 13,
Rule 39. [2 Riano 35, 2016 Bantam Ed.]
Exception: The sheriff shall not enforce the
writ if the adverse party makes a deposit with
the court from which the writ is issued, or gives
a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court
in the order of attachment or to the value of the
property to be attached, exclusive of costs.
[Sec. 5, Rule 57]
Sheriff’s return
After enforcing the writ, the sheriff must without
delay, make a return to the court issuing the
writ, with:
a. A full statement of his proceedings,
REMEDIAL LAW
A complete inventory of the property
attached, ang
Any counter-bond given by the party
against whom attachment is issued. [Sec.
6, Rule 57]
ATTACHMENT OF SPECIFIC KINDS OF
PROPERTY
a. Real property, or growing crops
thereon, or any interest therein, standing
upon the record of the registry of deeds of
the province in the name of the party
against whom attachment is issued, or not
appearing at all upon such records, or
belonging to the party against whom
attachment is issued and held by any other
person, or standing on the records of the
registry of deeds in the name of any other
person,
1. By filing with the registry of deeds a
copy of the order, together with a
description of the property attached,
and a notice that it is attached, or that
such real property and any interest
therein held by or standing in the name
of such other person are attached, and
by leaving a copy of such order,
description, and notice with the
occupant of the property, if any, or with
such other person or his agent if found
within the province
• Where the property has been
brought under the operation of
either the Land Registration Act or
the Property Registration Decree,
the notice shall contain a reference
to the number of the certificate of
title, the volume and page in the
registration book where the
certificate is registered, and the
registered owner or owners
thereof.
2. The registrar of deeds must index
attachments filed under this section in
the names of the applicant, the adverse
party, or the person by whom the
property is held or in whose name it
stands in the records. If the attachment
is not claimed on the entire area of the
land covered by the certificate of title, a
description sufficiently accurate for the
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b.
c.
d.
e.
CIVIL PROCEDURE
identification of the land or interest to
be affected shall be included in the
registration of such attachment
Personal property capable of manual
delivery,
• By taking and safely keeping it in his
custody, after issuing the corresponding
receipt therefor
Stocks or shares, or an interest in
stocks or shares, of any corporation or
company,
• By leaving with the president or
managing agent thereof, a copy of the
writ, and a notice stating that the stock
or interest of the party against whom the
attachment is issued is attached in
pursuance of such writ,
Debts and credits, including bank
deposits, financial interest, royalties,
commissions and other personal property
not capable of manual delivery,
• By leaving with the person owing such
debts, or having in his possession or
under his control, such credits or other
personal property, or with his agent, a
copy of the writ, and notice that the
debts owing by him to the party against
whom attachment is issued, and the
credits and other personal property in
his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ
The interest of the party against whom
attachment is issued in property
belonging to the estate of the decedent,
whether as heir, legatee, or devisee,
1. By serving the executor or
administrator or other personal
representative of the decedent with a
copy of the writ and notice that said
interest is attached.
2. A copy of said writ of attachment and of
said notice shall also be filed in the
office of the clerk of the court in
which said estate is being settled and
served upon the heir, legatee or
devisee concerned.
[Sec. 7, Rule 57]
Note: The attachment of the interest of an
heir, legatee, or devisee in the property
REMEDIAL LAW
belonging to the estate of a decedent shall
not impair the powers of the executor,
administrator,
or
other
personal
representative of the decedent over such
property for the purposes of administration.
[Sec. 9, Rule 57]
Attachment of property in custodia legis
a. A copy of the writ of attachment shall be
filed with the proper court or quasi-judicial
agency, and
b. Notice of the attachment served upon the
custodian of such property. [Sec. 7, Rule
57]
A previously attached property may also be
subsequently attached. What will arise in this
event will be a priority in the liens, where the
first attachment shall have priority over
subsequent attachments. [2 Riano 38, 2016
Bantam Ed.]
Examination of party whose property
whose property is attached or of persons
indebted to him
The Rules of Court empower the court to
examine under oath the party whose property
is attached for the purpose of giving
information respecting his property. Also, all
other persons in possession of property or
credit belonging to the person whose property
is attached may also be required to appear and
be examined under oath. [Sec. 10, Rule 57]
When property attached is being claimed by
third persons (Terceria, et al.)
A third person who has a claim to the property
attached may avail of the following remedies:
a. File terceria or third-party claim
1. By making an affidavit of his title
thereto, or right to the possession
thereof, stating the grounds of such
right or title, and
2. Serving such affidavit upon the
sheriff while the latter has possession
of the attached property, and a copy
thereof upon the attaching party. [Sec.
14, Rule 57]
b. File an independent action to recover
property. [Imani v. Metropolitan Bank &
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REMEDIAL LAW
Trust Company, G.R. No.187023 (2010)];
or
c. File motion for intervention (available only
before judgment is rendered) [Sec. 1, Rule
19]
Note: The last method was allowed in the
case of Gopiao v. Metropolitan Bank &
Trust Co. [G.R. No. 188931 (2014)]
Bond for issuance vs bond for lifting
a. Bond for issuance of writ [Sec. 4, Rule
57] – This is for damages by reason of the
issuance of the writ.
b. Bond for lifting of writ [Secs. 5 and 12,
Rule 57] – This is to secure the payment of
the judgment to be recovered.
[1 Regalado 709, 2010 Ed.]
f. Discharge of Attachment and
the Counter-bond
Only the defendant or party whose property is
attached may move for its lifting. If the
attachment is proper, the discharge should be
by counter-bond under Sec. 12. [KO Glass v.
Valenzuela, G.R. No. L-48756 (1982)]
Discharge of attachment and Counter-bond
After a writ of attachment has been enforced,
the party whose property has been attached, or
the person appearing on his behalf, may move
for the discharge of the attachment wholly or in
part on the security given. [Sec. 12, Rule 57]
Ways of discharging attachment
a. Counter-bond [Sec. 12, Rule 57]
b. Motion for discharge [Sec. 13, Rule 57]
Grounds for discharge
a. Debtor has posted a counter-bond or has
made the requisite cash deposit. [Sec. 12,
Rule 57]
• The mere posting of a counter-bond
does not automatically discharge the
writ of attachment. It is only after due
notice and hearing and after the judge
orders the discharge of the attachment
that the same is properly discharged. [2
Riano 42, 2016 Bantam Ed.]
b. Attachment was improperly or irregularly
issued [Sec. 13, Rule 57]
1. As where there was no ground for
attachment, or
2. The affidavit and/or bond filed are
defective or insufficient.
c. Judgment is rendered against attaching
creditor. [Sec. 19, Rule 57]
d. Attachment is excessive; but the discharge
shall be limited to the excess. [Sec. 13,
Rule 57]
e. Property attached is exempt from
execution.
[1 Regalado 709, 2010 Ed.]
Effect of discharge of the attachment
Upon the discharge of the attachment, the
property attached shall be delivered to the
party making the deposit or giving the
counterbond or the person appearing on his
behalf. [2 Riano 44, 2016 Bantam Ed.]
Obviously, such is also the effect when the
discharge was made through a motion alleging
the grounds in Sec. 13, Rule 57.
Effect of dissolution of preliminary
attachment on plaintiff’s attachment bond
a. Dissolution of preliminary attachment upon
security given, or a showing if its irregular
issuance, does not operate to discharge
the sureties on the attachment bond
[Davao Light and Power Co. v. CA, G.R.
No. 93262 (1991)]
• The bond is conditioned that the
applicant will pay all the costs which
may be adjudged to the adverse party
and all damages which he may sustain
by reason of the attachment, if the court
shall finally adjudge that applicant was
not entitled thereto. [Sec. 4, Rule 57]
• Until that determination is made, as to
applicant’s entitlement to attachment,
his bond must stand and cannot be
withdrawn. [Mindanao Savings &
Loan Association Inc v. CA, G.R. No.
84481 (1989)]
Claim for damages on account of improper,
irregular, or excessive attachment
a. When to be filed
1. Before trial, or
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2. Before appeal is perfected, or
3. Before
the
judgment
becomes
executory
b. Requirements for damages to be awarded
1. Due notice to the attaching party and
his surety or sureties,
2. Setting forth the facts showing the right
of the party to damages and the
amount thereof.
Note: Damages may be awarded only
after the proper hearing, and shall be
included in the judgment on the main
case.
[Sec. 20, Rule 57]
g. Satisfaction of Judgment Out of
Property Attached
If judgment be in favor of the attaching
party
General rule: If judgment be recovered by the
attaching party and execution issue thereon,
the sheriff may cause the judgment to be
satisfied out of the property attached, if it be
sufficient for that purpose, in the following
manner:
a. By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment
b. If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff’s hands, or in those of the clerk of
the court
c. By collecting from all persons having in
their possession credits belonging to the
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such credits
and debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over
to the judgment obligee.
REMEDIAL LAW
Exception: Even before judgement is
entered in favor of the attaching party, the
court may order such property to be sold at
public auction in such manner as the court may
direct, and the proceeds of such sale to be
deposited in court to abide the judgment in the
action whenever it shall be made to appear to
the court in which the action is pending, upon
hearing with notice to both parties, that the:
a. Property attached is perishable, or
b. Interests of all the parties to the action will
be subserved by the sale thereof.
[Sec. 11, Rule 57]
If judgement be against the attaching party
All the proceeds of sales and money collected
by the sheriff under the order of attachment,
and all property attached remaining in any such
sheriff’s hands, shall be delivered to the party
against whom attachment was issued. [Sec.
19, Rule 57]
If proceeds from realization of all property
attached are not enough to satisfy
judgement
If such a scenario happens, the Rules of Court
instruct that any balance shall be collected
by the sheriff as upon ordinary execution.
Whenever the judgement shall have been paid,
the sheriff must return to the judgement debtor
any attached property remaining in his hands.
[Sec. 16, Rule 57]
Duration of an attachment lien
While the provisions of Rule 57 are silent on
the length of time within which an attachment
lien shall continue to subsist after the rendition
of a final judgment. The lien continues until:
a. The debt is paid, or
b. The sale is had under execution issued on
the judgment, or
c. Until the judgment is satisfied, or
d. The attachment discharged or vacated in
the same manner provided by law. [Lim v.
Sps. Lazaro, G.R. No. 185734 (2013)]
The sheriff shall forthwith make a return in
writing to the court of his proceedings under
this section and furnish the parties with copies
thereof. [Sec. 15, Rule 57]
Page 174 of 525
h. Compared with Garnishment
and Levy on Execution
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Kinds of attachment as to availability and
effects
1. Preliminary attachment - one issued at
the commencement of the action or at any
time before entry of the judgment as
security for the satisfaction of any judgment
that may be recovered in the cases
provided for by the rules; [Sec. 1, Rule 57]
2. Levy on execution - writ issued by the
court after judgment by which the property
of the judgment obligor is taken into
custody of the court before the sale of the
property on execution before the
satisfaction of a final judgment. [Sec. 8,
Rule 39] [1 Regalado 691, 2010 Ed.]
Kinds of attachment as to form and
procedure of attachment:
1. Regular form of attachment – attachment
which refers to attachment of corporeal
property in possession of the party
involved. [1 Regalado 691, 2010 Ed.]
2. Garnishment - A kind of attachment in
which the plaintiff seeks to subject either
the property of the defendant in the hands
of a third person called garnishee, to his
claim or the money which said third person
owes the defendant; [Virata v. Aquino, G.R.
L-35027 (1973)].
4. PRELIMINARY INJUNCTION
a. Definitions and Differences:
Preliminary
Injunction,
Temporary Restraining Order,
And Status Quo Ante Order
Preliminary Injunction
Two Kinds:
1. Preliminary Prohibitory Injunction commands one to refrain from performing
a particular act or acts.
2. Preliminary Mandatory Injunction commands the performance of some
positive act to correct a wrong made in the
past. [Dela Rosa v. Heirs of Valdez, 654
SCRA 467 (2015)]
In both cases, such orders are granted at any
stage of an action prior to the judgement or
final order of the court. [Sec. 1, Rule 58]
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Purpose
A writ of preliminary injunction is issued by the
court to prevent threatened or continuous
irreparable injury to parties before their
claims can be thoroughly studied and
adjudicated and during the pendency of an
action. [Manila International v. Rivera, 471
SCRA 358 (2005)]
Nature
A preliminary injunction is an equitable
remedy, and one who comes to claim for
equity must do so with clean hands. It is to be
resorted to by a litigant to prevent or preserve
a right where there is a pressing necessity to
avoid injurious consequences which cannot be
remedied
under
any
standard
of
compensation. [Sps. Nisce v. Equitable, G.R.
No. 170038 (2012)]
Moreover, an injunctive writ is not a judgement
on the merits of the case. A writ of preliminary
injunction is generally based solely on initial
and incomplete evidence. Thus, the issuance
of a writ of preliminary injunction is
interlocutory in nature. [Recto v. Escaler, 634
SCRA 180 (2010)]
Lastly, the grant or denial of a writ of
preliminary injunction is discretionary
because the assessment and evaluation of
evidence involve findings of fact left to the
court’s discretion. Hence, the exercise of
judicial discretion in injunctive matters must not
be interfered with except when there is
manifest abuse. [2 Riano 53-54, 2016 Bantam
Ed.]
Temporary Restraining Order (TRO)
An order issued to preserve the status quo
until the hearing of the application for a writ
of preliminary injunction because the
injunction cannot be issued ex parte. [Bacolod
Water v. Labayen, 446 SCRA 110 (2004)] By
its nature, it could be considered as a
“provisional remedy within a provisional
remedy” because it is issued to preserve the
status quo for a limited period until the court
decides to issue a writ of preliminary injunction.
[2 Riano 67, 2016 Bantam Ed.]
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Status Quo Ante Order (SQAO)
Unlike a TRO or a preliminary injunction, a
SQAO is more in the nature of a cease and
desist order, since it neither directs the
undoing or doing of acts as in the case of
prohibitory or mandatory injunctive relief. A
SQAO seeks to only maintain the last, actual,
peaceable, and uncontested state of things
which immediately preceded the controversy.
[Oca v. Custodio, G.R. No. 174996 (2014)]
b. Requisites
Formal requisite for issuance of a writ of
preliminary injunction or a TRO
A preliminary injunction or temporary
restraining order may be granted only
a. Upon verified application, showing facts
entitling the applicant to the relief
demanded, and
b. Unless exempted by the court, the
applicant files with the court where the
action or proceeding is pending, a bond
executed to the party or person enjoined, in
an amount to be fixed by the court, to the
effect that the applicant will pay to such
party or person all damages which he may
sustain by reason of the injunction or
temporary restraining order if the court
should finally decide that the applicant was
not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary
injunction shall be issued.
• If the person enjoined takes exception
to the sufficiency of the bond, and there
is a showing that the applicant’s bond
is insufficient in amount, the injunction
shall be dissolved. [2 Riano 65, 2016
Bantam Ed.]
c. When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint
or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled only
after notice to and in the presence of the
adverse party or the person to be enjoined.
In any event, such notice shall be
preceded,
or
contemporaneously
accompanied by service of summons,
together with a copy of the complaint or
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initiatory pleading and the applicant’s
affidavit and bond, upon the adverse party
in the Philippines. However, where the
summons could not be served personally
or by substituted service despite diligent
efforts, or the adverse party is a resident of
the
Philippines
temporarily
absent
therefrom or is a nonresident thereof, the
requirement of prior or contem­poraneous
service of summons shall not apply.
d. The application for a temporary
restraining order shall thereafter be acted
upon only after all parties are heard in a
summary hearing which shall be
conducted within twenty-four (24) hours
after the sheriff’s return of service and/or
the records are received by the branch
selected by raffle and to which the records
shall be transmitted immediately. [Sec. 4,
Rule 58]
e. As to a writ of preliminary injunction, the
court must conduct a hearing. A writ of
preliminary injunction cannot be issued
without a prior notice and hearing. [Sec. 5,
Rule 58]
• Note: On the other hand, a TRO can be
issued ex parte pursuant to Sec. 5,
Rule 58. [2 Riano 65, 2016 Bantam
Ed.]
The applicant must establish:
a. The existence of a clear and unmistakable
right that must be protected; that is, right in
esse
b. This right in esse is directly threatened by
an act sought to be enjoined
c. A material and substantial invasion of such
right; and
d. An urgent and paramount necessity for the
writ to prevent serious damage.
[Dulnuan v. Metrobank, G.R. No. 196864
(2015)]
Right in esse
The applicant's right must be clear or
unmistakable, that is, that the right is actual,
clear and positive especially calling for judicial
protection. An injunction will not issue to
protect a right not in esse and which may never
arise or to restrain an act which does not give
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rise to a cause of action. [Marquez v. Sanchez,
G.R. No. 141849 (2007)]
and among the parties. [WT Construction, Inc.
v. DPWH, G.R. No. 163352 (2007)]
Irreparable injury
Does not have reference to the amount of
damages that may be caused but rather to the
difficulty of measuring the damages
inflicted. This includes:
a. That degree of wrong of a repeated and
continuing kind which produces hurt,
inconvenience, or damage that can be
estimated only by conjecture, and not by
any accurate standard of measurement.
b. Damage where there is no standard by
which their amount can be measured with
reasonable accuracy
c. A serious charge of, or is destructive to, the
property it affects, either physically or in the
character in which it has been held and
enjoined, or when the property has some
peculiar quality or use, so that its pecuniary
value will not fairly recompense the owner
of the loss thereof.
If full compensation can be obtained, by way of
damages, equity will not favor the remedy of
injunction. [Social Security Commission v.
Bayona, G.R. No. L-13555 (1962)]
Kinds of Temporary Restraining Orders
1. 20-day TRO
If it appears from the facts that great or
irreparable injury would result to the applicant
before the matter can be heard, the court in
which the application for preliminary injunction
was made may issue ex parte for a period not
exceeding 20 days from service to the party
sought to be enjoined. [2 Riano 67, 2016
Bantam Ed.]
c. Kinds of Injunctions; Kinds of
Temporary Restraining Orders
Kinds of Preliminary injunctions
a. Preliminary injunction – an order granted
at any stage of an action or proceeding
prior to the judgment or final order,
requiring a party or a court, agency or a
person to refrain from a particular act or
acts.
b. Preliminary mandatory injunction –
requires the performance of a particular act
or acts [Sec. 1, Rule 58]
A preliminary mandatory injunction may also
issue in cases where the relative
inconvenience bears strongly in the requesting
party’s favor, and where the effect of the
mandatory injunction is to re-establish and
maintain a pre-existing continuing relation
between the parties, which was recently and
arbitrarily interrupted by another party, rather
than to establish a new relationship between
2. 72-hour TRO
If the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury, the executive judge of a
multi-sala court or the presiding judge of a
single-sala court may issue ex parte a TRO
effective for only 72 hours from issuance, not
from service (the latter being the reckoning
point for the 20-day TRO).
Within this period, a summary hearing to
determine whether to extend the TRO to 20
days must be conducted. The 72-hour period
shall be included in the maximum 20-day
period set by the Rules. [2 Riano 68, 2016
Bantam Ed.]
d. When Writ May Be Issued,
When Writ May Not Be Issued
When: At any stage of an action or proceeding
prior to the judgment or final order. [Sec. 1,
Rule 58]
By whom: By the court where the action or
proceeding is pending. If the action or
proceeding is pending in the CA or in the SC, it
may be issued by said court or any member
thereof. [Sec. 2, Rule 58]
Note: Being preliminary, an order granting a
preliminary injunction need not clearly and
distinctly state the findings of fact and
conclusions of law on which it is based. [UCPB
v. United Alloy Phils. Corp., G.R. No. 152238
(2005)]
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When not allowed
1. Under RA 8975 (An Act to Ensure the
Expeditious
Implementation
and
Completion of Government Infrastructure
Projects);
Rationale: Injunctions and restraining
orders tend to derail the implementation
and
completion
of
government
infrastructure projects. [2 Riano 72-73,
2016 Bantam Ed.]
2. Under the Rule of Procedure in
Environmental Cases, no court can issue
a TRO or a preliminary injunction against
lawful actions of government agencies that
enforce environmental laws. [Sec. 10, Rule
2, Part II, AM No. 09-6-8-SC]
3. No TRO or injunction in any case
involving or growing out of a labor
dispute shall be issued by any court
except as otherwise provided in Arts. 218
and 264 of the Labor Code. It is the NLRC
which may grant injunctive relief. [Ravago
v. Esso, 453 SCRA 381 (2005)]
4. No court shall have the authority to grant
injunction to restrain the collection of any
national internal revenue tax except
when special circumstances warrant.
[Sarasola v. Trinidad, 40 Phil. 252 (1919)]
5. An injunction cannot be issued against
consummated acts. The established
principle is that when the events sought to
be prevented have already happened,
nothing more could be enjoined. [Ramos
Sr. v. CA, 173 SCRA 550 (1989)]
e. Grounds for Issuance
Preliminary Injunction
of
A preliminary injunction may be granted when
it is established that:
a. The applicant is entitled to the relief
demanded, and the whole or part of such
relief
consists
in
restraining
the
commission or continuance of the act or
acts complained of, or in requiring the
performance of an act or acts, either for a
limited period or perpetually
b. The commission, continuance or nonperformance of the act or acts complained
REMEDIAL LAW
of during the litigation would probably work
injustice to the applicant, or
c. A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act
or acts probably in violation of the rights of
the applicant respecting the subject of the
action or proceeding, and tending to render
the judgment ineffectual. [Sec. 3, Rule 58]
f. Grounds for Objection To, or for
the Dissolution of Injunction or
Restraining Order
a. Upon a showing of its insufficiency
• An application for injunction may be
considered insufficient if it is not
verified and supported by any of the
grounds for its issuance under Sec. 3
of Rule 58 OR if it is not supported by
the required bond under Sec. 4 of Rule
58. [2 Riano 82, 2016 Bantam Ed.]
b. Other grounds upon affidavits of the
party or person enjoined, which may be
opposed by the applicant also by affidavits
c. If it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof, as the case may
be, would cause irreparable damage to
the party or person enjoined while the
applicant can be fully compensated for
such damages as he may suffer, and the
former files a bond in an amount fixed by
the court conditioned that he will pay all
damages which the applicant may suffer by
the denial or the dissolution of the
injunction or restraining order.
• If the bond of the adverse party is found
to be insufficient, the injunction shall be
granted or restored. [2 Riano 65, 2016
Bantam Ed.]
Note: If it appears that the extent of the
preliminary injunction or restraining order
granted is too great, it may be modified.
[Sec. 6, Rule 58]
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g. Duration
of
Temporary
Restraining Orders
Rule on non-extendibility
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the TRO is
deemed automatically vacated.
The effectivity of a TRO is not extendible
without need of any judicial declaration to that
effect, and no court shall have authority to
extend or renew the same on the same ground
for which it was issued. [Sec. 5, Rule 58]
Duration differs as per court issuing the
TRO
1. If issued by the RTC - The rule against
non-extendibility
of
the
20-day
effectiveness of a TRO is absolute. [2
Riano 68, 2016 Bantam Ed.]
2. If issued by the CA - A TRO may be
issued by the CA or any member thereof. If
so issued, it shall be effective for 60 days
from service on the party or person sought
to be enjoined. A TRO issued by the CA
has a non-extendible lifetime of 60 days
and automatically expires on the 60th day
without need of judicial declaration. [2
Riano 70, 2016 Bantam Ed.]
3. If issued by the SC - A TRO issued by the
SC shall be effective until further orders.
[2 Riano 71, 2016 Bantam Ed.]
When main case to be decided
The trial court, the CA, the Sandiganbayan, or
the CTA that issued the preliminary injunction
against a lower court, board, officer, or quasijudicial agency shall decide the main case or
petition within 6 months from the issuance
of the writ. [Sec. 5, Rule 58]
h. Rule
on
Prior
or
Contemporaneous Service of
Summons in Relation to
Attachment
General rule: When an application for a writ
of preliminary injunction or a temporary
restraining order is included in a complaint or
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any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after
notice to and in the presence of the adverse
party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously
accompanied
by
service of summons, together with a copy of
the complaint or initiatory pleading and the
applicant’s affidavit and bond, upon the
adverse party in the Philippines.
Exceptions: The requirement of prior or
contemporaneous service of summons
shall not apply:
a. The summons could not be served
personally or by substituted service despite
diligent efforts, or
b. The adverse party is a resident of the
Philippines temporarily absent therefrom or
is a nonresident thereof
[Sec. 4, Rule 58]
Grant of final injunction
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined, the court
shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or
acts or confirming the preliminary mandatory
injunction. [Sec. 9, Rule 58]
5. RECEIVERSHIP
Receiver
A person appointed by the court on behalf of
all the parties to the action for the purpose of
preserving and conserving the property in
litigation and preventing its possible
destruction or dissipation if it were left in the
possession of any of the parties. [Normandy v.
Duque, G.R. No. L-25407 (1969)]
A receiver is not an agent of any party to the
action. He is an officer of the court exercising
his functions in the interest of neither plaintiff
nor defendant but for the common benefit of all
the parties in interest. [2 Riano 87-88, 2016
Bantam Ed.]
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Purpose
Receivership, like injunction, may be the
principal action itself or just an ancillary
remedy. [1 Regalado 745, 2010 Ed.]
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights
of the parties during the pendency of the main
action, during the pendency of an appeal, or as
an aid in the execution of a judgment when the
writ of execution has been returned unsatisfied.
[Ysasi v. Fernandez, G.R. L-28593 (1968); 2
Riano 129, 2012 Ed.]
Unlike the other provisional remedies which
can be availed of only before final judgment,
receivership may be resorted to even after
the judgment has become final and
executory, under Sec. 1(c), Rule 59 in relation
to Sec. 41, Rule 39. [1 Regalado 747, 2010
Ed.]
The receivership under Rule 59 is directed to
the property which is the subject of the
action and does not refer to the receivership
authorized under banking laws and other rules
or laws. Rule 59 presupposes that there is an
action and that the property subject of the
action requires its preservation. [2 Riano 128,
2012 Ed.]
The guiding principle is the prevention of
imminent danger to the property. If an action
by its nature does not require such protection
or preservation, said remedy cannot be applied
for and granted. [Commodities Storage v. CA,
G.R. No. 125008 (1997)]
a. Cases When Receiver May Be
Appointed
a. When it appears from the verified
application, and such other proof as the
court may require, that the party applying
for the appointment of a receiver has an
interest in the property or fund which is the
subject of the action or proceeding, and
that such property or fund is in danger of
being lost, removed, or materially
injured unless a receiver be appointed to
administer and preserve it;
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b. When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
being wasted or dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage debt,
or that the parties have so stipulated in the
contract of mortgage;
c. After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judg­ment, or
to aid execution when the execution has
been returned unsatisfied or the judgment
obligor refuses to apply his property in
satisfaction of the judgment, or otherwise
to carry the judgment into effect;
d. Whenever in other cases it appears that
the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing
of the property in litigation.
[Sec. 1, Rule 59]
Specific cases
a. If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership [Art. 101, FC]
b. The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of,
or any interference with, the property of the
judgment obligor not exempt from
execution [Sec. 41, Rule 39]
c. After the trial court loses jurisdiction over
the case (in appeals by notice of appeal) or
only over the subject matter (in appeals by
record on appeal), and prior to the
transmittal of the original record or the
record on appeal, the court may issue
orders for the protection and preservation
of the rights of the parties [Sec. 9, Rule 41],
including necessarily the authority to
appoint a receiver who has the power to
take and keep possession of the property
in controversy [Acuña v. Calauag, G.R. No.
L-10736 (1957)]
d. After final judgment, a receiver may be
appointed as an aid to the execution of
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judgment [Philippine Trust Company v.
Santamaria, G.R. 31951 (1929)]
e. Appointment of a receiver over the property
in custodia legis may be allowed when it is
justified by special circumstances, as when
it is reasonably necessary to secure and
protect the rights of the real owner [Dolar v.
Sundiam, G.R. No. 27361 (1971)]
Who appoints a receiver
a. Court where the action is pending
b. CA
c. SC
d. During the pendency of an appeal, the
appellate court may allow an application for
the appointment of a receiver to be filed in
and decided by the court of origin
[Sec. 1, Rule 59]
b. Requisites
Requisites for appointment of a receiver
a. Verified application filed by the party
requesting for the appointment of the
receiver [Sec. 1, Rule 59]
b. The grounds stated in Sec. 1, Rule 59
enumerated in Part D.1 of this (Provisional
Remedies) reviewer.
c. Application must be with notice and must
be set for hearing;
d. Before appointing a receiver, the court
shall require the applicant to post a bond
executed to the party against whom the
application is presented, in an amount to
be fixed by the court. [Sec. 2, Rule 59]
e. Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully and shall file a bond,
executed to such person and in such sum
as the court may direct [Sec. 4, Rule 59]
c. Requirements Before Issuance
of an Order
Oath and bond of receiver
Before entering his duties, the receiver shall
be sworn to perform them faithfully, and
shall file a bond, executed to such person and
in such sum as the court may direct, to the
effect that he will faithfully discharge his duties.
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d. General Powers of a Receiver
Powers of a receiver
Subject to the control of the court in which the
action or proceeding is pending, a receiver
shall have the power to
a. Bring and defend, in such capacity, actions
in his own name
b. Take and keep possession of the property
in controversy
c. Receive rents
d. Collect debts due to himself as receiver or
to the fund, property, estate, person, or
corporation of which he is the receiver
e. Compound for and compromise the same
f. Make transfers
g. Pay outstanding debts
h. Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
i. Generally to do such acts respecting the
property as the court may authorize
j. Invest funds in his hands, only by order of
the court upon the written consent of all the
parties
[Sec. 6, Rule 59]
Liability for refusal or neglect to deliver
property to receiver
a. May be punished for contempt, and
b. Shall be liable to the receiver for the money
or the value of the property and other things
so refused or neglected to be surrendered,
together with all damages that may have
been sustained by the party or parties
entitled thereto as a consequence of such
refusal or neglect
[Sec. 7, Rule 59]
Remedies against the receiver
An aggrieved party may:
1. Take the matter into the court which
appointed the receiver and ask either for an
accounting or take some other proceeding,
and ask for consequent judgment on the
acts complained of; or
2. Ask for leave of court to bring him an action
directly
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Note: Any action filed against a receiver
without the required judicial authority may
be dismissed through the allegation of
failure to comply with a condition precedent
as an affirmative defense to the action. [2
Riano 92, 2016 Bantam Ed.]
[De la Riva v. Molina Salvador, G.R. L-10106
(1915)]
e. Two Kinds of Bonds
a. Applicant’s bond
1. Executed to the party against whom
the application is presented
2. In an amount to be fixed by the court
3. To the effect that the applicant will pay
such party all damages he may sustain
by reason of the appointment in case
the applicant shall have procured such
without sufficient cause the court may,
in its discretion, at any time after the
appointment, require an additional
bond as further security for such
damages. [Sec. 2, Rule 59]
b. Receiver’s bond
1. Before entering upon his duties
2. Executed to such person and
3. In such sum as the court may direct
4. To the effect that he will faithfully
discharge his duties in the action or
proceeding and obey the orders of the
court. [Sec. 4, Rule 59]
Counterbond
on
opposition
for
appointment of a receiver
The party against whom the application for
appointment of a receiver may oppose the
application or ask for the discharge of a
receiver already appointed. To make a
successful opposition, such party should file a
bond:
a. Executed to the applicant,
b. In an amount to be fixed by the court,
c. To the effect that such party will pay the
applicant all damages he may suffer by
reason of acts, omissions, or other matters
specified in the application as ground for
such appointment. [Sec. 3, Rule 59]
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f. Termination of Receivership
Ground
The necessity for a receiver no longer exists.
[Sec. 8, Rule 59]
Procedure
1. The court shall determine that the
necessity for a receiver no longer exists
a. Motu proprio or
b. On motion of either party
2. Due notice should be given to all interested
parties
3. Hearing shall be conducted
4. After due notice and hearing, the court
shall
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and
other property in his possession to the
person adjudged to be entitled to
receive them, and
c. Order the discharge of the receiver
from further duty as such
d. Allow the receiver such reasonable
compensation as the circumstances of
the case warrant, to be taxed as costs
against the defeated party, or
apportioned, as justice requires.
[Sec. 8, Rule 59]
6. REPLEVIN
Replevin is the provisional remedy seeking for
the possession of the property prior to the
determination of the main action for
replevin. [BA Finance Corp. v. CA, G.R. No.
102998 (1996)]
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully detained
by a person. In this sense, it is a suit in itself.
[BA Finance Corp. v. CA, G.R. No. 102998
(1996)]
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Replevin
The purpose is to
recover personal
property capable
of
manual
delivery from the
defendant
[1
Regalado
753,
2010 Ed.]
The
property
either belongs to
the plaintiff or one
over which the
plaintiff has a
right
of
possession [Sec.
2, Rule 60]
May be sought
only when the
principal action is
for the recovery
of
personal
property
[1
Regalado
753,
2010 Ed.]
Can be sought
only when the
defendant is in
actual
or
constructive
possession of the
property
[1
Regalado
753,
2010 Ed.]
Cannot
be
availed of when
property is in
custodia
legis
[Montesa
v.
Manila Cordage.
G.R.
L-44537
(1978)]
Available before
defendant
answers [Sec. 1,
Rule 60]
CIVIL PROCEDURE
Preliminary
attachment
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff
[Sec. 1, Rule 57]
The property does not
belong to the plaintiff
but to the defendant [1
Regalado 753, 2010
Ed.]
Available
even
if
recovery of property is
only incidental to the
relief
sought
[1
Regalado 753, 2010
Ed.]
May be resorted to even
if
property
is
in
possession of a third
person [1 Regalado
753, 2010 Ed.]
Can be availed of when
property is in custodia
legis [Sec. 7, Rule 57]
Available
commencement
before
entry
from
but
of
REMEDIAL LAW
judgment [Sec. 1, Rule
57]
Bond is double
the value of the
property
[Sec.
2(d), Rule 60]
Bond is fixed by the
court [Sec. 4, Rule 57]
a. When May Writ Be Issued
A party praying for the recovery of possession
of
personal
property
may,
at
the
commencement of the action or at any time
before answer, apply for an order for the
delivery of such property to him. [Sec. 1, Rule
60]
Scope of Title of Applicant
An applicant need not be the holder of legal
title to the property in question. It is in the
nature of a possessory action. It is sufficient
that at the time he applied for a writ of replevin
he is found to be entitled to a possession
thereof. [Chiao Liong v. CA, G.R. No. 106251
(1993)]
General rule: Primarily, the action of replevin
determines nothing more than the right of
possession.
Exception: When the title to the property is
distinctly put in issue by the defendant's plea,
the question of ownership may be resolved in
the same proceeding. [Chiao Liong v. CA, G.R.
No. 106251 (1993)]
Where replevin writ was improperly
implemented
The proper remedy to an improperly
implemented writ of replevin is to file a motion
to quash. [Siy v. Tomlin, G.R. No. 205998
(2017)]
But failure of a party to file a motion to quash
does not prevent a party from assailing the
improper service via a petition for certiorari.
The trial court is deemed to have acted without
or in excess of its jurisdiction if improperly
served. It must restore the parties to their
former positions by returning the seized
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property and by discharging the replevin bond.
[Rivera v. Vargas, G.R. No. 165895 (2009)]
b. Requisites
a. The applicant must show by his own
affidavit or that of some other person who
personally knows the facts the items stated
in Part F.3 (Affidavit and bond; redelivery
bond)
b. The applicant must also give a bond,
called a replevin bond.
[Sec. 2, Rule 60]
Upon the filing of such affidavit and approval of
the bond, the court shall issue an order and the
corresponding writ of replevin describing the
personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to
take such property into his custody [Sec. 3,
Rule 60]
c. Affidavit and Bond; Redelivery
Bond
Contents of the affidavit:
The affidavit shall show
a. That the applicant is the owner of the
property claimed, particularly describing it,
or is entitled to the possession thereof;
b. That the property is wrongfully detained
by the adverse party, alleging the cause of
detention thereof according to the best of
his knowledge, information, and belief;
c. That the property has not been distrained
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed under custodia legis, or
if so seized, that it is exempt from such
seizure or custody; and
d. The actual market value of the property.
[Sec. 2, Rule 60]
Applicant’s bond (Replevin Bond)
a. Executed to the adverse party
b. Double the value of the property as stated
in the affidavit
c. Conditions:
REMEDIAL LAW
1. The return to of property to adverse
party if such return be adjudged, and
2. The payment to adverse party of such
sum as he may recover from the
applicant in the action.
[Sec. 2, Rule 60]
Return of property
If the adverse party objects to the sufficiency
of the
a. Applicant’s bond, or
b. Surety or sureties thereon,
he cannot immediately require the return of the
property, but he may, at any time before the
delivery of the property to the applicant, require
the return thereof. [Sec. 5, Rule 60]
How return of property may be required;
Redelivery bond
File a bond with the court where the action is
pending. Such shall be:
a. Executed to the applicant,
b. In double the value of the property as
stated in the applicant’s affidavit
c. Conditions
1. The delivery thereof to the applicant, if
such delivery be adjudged, and
2. The payment of such sum to him as
may be recovered against the adverse
party, and by serving a copy of such
bond on the applicant.
[Sec. 5, Rule 60]
d. Sheriff’s
Duty
in
The
Implementation of The Writ;
When Property Is Claimed by
Third Party
i. Sheriff’s Duty in Implementation
1. Upon receiving the order, the sheriff must
a. Serve a copy thereof on the adverse
party, together with a copy of the
application, affidavit and bond, and
b. Forthwith take the property, if it be in
the possession of the adverse party, or
his agent, and retain it in his custody.
2. If the property or any part thereof be
concealed in a building or enclosure, the
sheriff must
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REMEDIAL LAW
a. Demand its delivery, and
b. If it be not delivered, he must cause the
building or enclosure to be broken
open and take the property into his
possession.
3. After the sheriff has taken possession of
the property, he must
a. Keep it in a secure place and
b. Shall be responsible for its delivery to
the party entitled thereto upon
receiving his fees and necessary
expenses for taking and keeping the
same.
[Sec. 4, Rule 60]
Unless the applicant or his agent, on demand
of said sheriff, shall file a bond approved by
the court to indemnify the third-party claimant
in a sum not less than the value of the property
under replevin as provided in Sec. 2, Rule 60.
• No claim for damages for the taking or
keeping of the property may be
enforced against the bond unless the
action therefor is filed within 120 days
from the date of the filing of the bond.
Delivery of the property
The property shall be delivered to the
applicant,
1. If within 5 days after the taking of the
property by the sheriff, the adverse party
does not object to the sufficiency of
a. the bond, or
b. of the surety or sureties thereon; or
2. If the adverse party so objects and the
court affirms its approval of the applicant’s
bond or approves a new bond, or
3. If the adverse party requires the return of
the property but his bond (redelivery bond)
is objected to and found insufficient and he
does not forthwith file an approved bond,
Judgment
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall render
judgment for the delivery of:
a. The property itself to the party entitled to
the same, or
b. Its value in case delivery cannot be made,
and
c. For such damages as either party may
prove, with costs.
[Sec 9, Rule 60]
If for any reason the property is not delivered
to the applicant, the sheriff must return it to the
adverse party. [Sec. 6, Rule 60]
ii. When Property Claimed by Third
Party
If the property taken is claimed by any person
other than the party against whom the writ of
replevin had been issued or his agent, the
sheriff shall not be bound to keep the
property under replevin or deliver it to the
applicant if:
1. The third party makes an affidavit of his
title or right to the possession
2. Stating the grounds therefor, and
3. Serves such affidavit upon the sheriff while
he has possession of the property and a
copy thereof upon the applicant.
Note: In case of disagreement as to such value,
the court shall determine the same.
[Sec. 7, Rule 60]
Recovering damages on an applicant’s
bond
Requirements
a. The defendant­ claimant has secured a
favorable judgment the main action,
meaning that the plaintiff has no cause of
action and was not entitled to the
replevin;
b. The application for damages, showing
claimant’s right thereto and the amount
thereof, be filed in the same action before
trial or before appeal is perfected or before
the judgment becomes executory;
c. Due notice be given to the other party and
his surety or sureties, notice to the principal
not being sufficient;
d. A proper hearing and the award for
damages should be included in the final
judgment.
[DBP v. Carpio, G.R. No. 195450 (2017)]
Note: DBP v. Carpio states that the same
requirements apply when recovering
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U.P. LAW BOC
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damages under other provisional remedies,
as provided in Sec. 20, Rule 57; Sec. 8, Rule
58 and Sec. 9, Rule 59.
Even where the judgment is that the defendant
is entitled to the property, but no order was
made requiring the plaintiff to return it or
assessing damages in default of return, there
could be no liability on the part of the sureties
until judgment was entered that the property
should be restored. [Sapugay et. al. v. CA, G.R.
No. 86792 (1990)]
7. PROVISIONAL
REMEDIES
AND
INTERIM
RELIEFS
UNDER SPECIAL LAWS AND
RULES
a. Provisional Remedies of the
Family Courts
R.A. 8369 provides for certain provisional
remedies described in the law as special
provisional remedies. [2 Riano 111, 2016
Bantam Ed.]
Restraining order
In case of violence among the immediate
members of the family living in the same
domicile, the Family Court may issue a
restraining order against the accused or
defendant if the complainant or victim files a
verified application for relief from abuse. [Sec.
7, RA 8369]
Temporary custody
In all civil actions for the custody of children,
the court may order the temporary custody of
the children. [Sec. 7, R.A. 8369]
Support pendente lite
In all civil actions for support, the court may
also order support pendente lite, deduction
from the salary, and use of the conjugal home.
[Sec. 7, R.A. 8369]
REMEDIAL LAW
b. Human Security Act
Seizure of assets
A seizure and sequestration of assets of
certain persons are authorized including those
of a person “suspected” of terrorism as defined
in the law. [Sec. 39]
Travel restriction
The right to travel of the person charged may
be subjected to restrictions even before
judgement under certain conditions. [Sec. 26]
Examination of bank deposits
The bank deposits, accounts, and records,
among others, of a person charged or
suspected of a crime defined under the HSA
may be examined under certain conditions, the
provisions of the Secrecy of Bank Deposits
Law notwithstanding. [Sec. 27]
1.
Anti-violence Against Women and Children
Act
Certain interim reliefs may be availed of under
R.A. 9262 even before or in the absence of a
decree of legal separation, annulment or
declaration of absolute nullity of marriage and
for the protection of women and their children.
[2 Riano 114-115, 2016 Bantam Ed.]
Protection order
A protection order is an order issued for the
purpose of preventing further acts of violence
against a woman or her child as specified in the
law and granting the necessary relief.
The protection orders under R.A. 9262 are of
two kinds, namely:
1. Temporary Protection Order - issued by
the court on the date of filing of the
application after ex parte determination
that such order should be issued. A court
may grant in a TPO any, some, or all of the
reliefs mentioned in the Act and shall be
effective for 30 days.
2. Barangay Protection Order - issued by
the Punong Barangay or any available
Barangay
Kagawad
ordering
the
perpetrator to desist from committing acts
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described in the law. When issued, they
shall be effective for 15 days.
[2 Riano 115-116, 2016 Bantam Ed.]
c. Anti-Money Laundering Act
Freezing of monetary instrument or
property
The CA, upon application ex parte by the AntiMoney Laundering Council (AMLC) and after
determination that probable cause exists that
any monetary instrument or property is in any
way related to money laundering, may issue a
freeze order effective immediately. [Sec. 10]
Authority to inquire into bank deposits
The AMLC may inquire into or examine any
particular deposit or investment with any
banking institution or non-bank financial
institution upon order of any competent court in
cases of violation of this Act, when it has been
established that there is probable cause that
the deposits or investments are related to
unlawful activities as defined in this law. [Sec.
11]
d. Financial Rehabilitation
Insolvency Act
and
Upon the issuance of a Commencement Order,
such shall include a Stay or Suspension
Order which shall:
1. Suspend all actions or proceedings, in
court or otherwise, for the enforcement of
claims against the debtor;
2. Suspend all actions to enforce any
judgment, attachment or other provisional
remedies against the debtor;
3. Prohibit
the
debtor
from
selling,
encumbering, transferring or disposing in
any manner any of its properties except in
the ordinary course of business; and
4. Prohibit the debtor from making any
payment of its liabilities outstanding as of
the commencement date except as may be
provided
herein.
[Sec.
16(q)]
e. Precautionary Hold Departure
Orders
Lifting of PHDO
In order to have the PHDO temporarily lifted,
the respondent may:
a. File a verified motion
b. Based on meritorious grounds:
1. There is doubt that probable cause
exists in issuing the PHDO, or
2. It is shown that he is not a flight risk
c. Post a bond. [Sec. 7]
E.
SPECIAL CIVIL
ACTIONS
1. NATURE OF SPECIAL CIVIL
ACTIONS
Special civil actions are generally brought or
filed for the same purpose as a civil action, that
is, for a party to sue another for the
enforcement of a right, or the prevention or
redress of a wrong. [1 Riano 495, 2007 Ed.]
A special civil action is governed by the rules
for ordinary civil actions, subject to the special
rules prescribed for a special civil action. [Sec.
3(a), Rule 1]
2. DISTINGUISH:
ORDINARY
CIVIL
ACTIONS
AND
SPECIAL CIVIL ACTIONS
Ordinary civil
action
A
party
sues
another for the
enforcement
or
protection of a right
or prevention or
redress of a wrong.
[Sec. 3(a), Rule 1]
Governed by the
ordinary
rules.
[Sec. 3, Rule 1]
Page 187 of 525
Special civil action
A party also files the
action
for
the
enforcement
or
protection of a right or
prevention or redress
of a wrong. [1 Riano
495, 2007 Ed.]
Also governed by
ordinary rules but
subject to specific
rules prescribed. [Sec.
3, Rule 1]
U.P. LAW BOC
Must be based on a
cause of action
which means that
there must have
been a violation of
plaintiff’s
rights.
[Sec. 1, Rule 2]
Venue
is
determined
by
either
the
residence of the
parties when action
is personal or by
the location of the
property when the
action
is
real.
[Secs. 1-2, Rule 4]
Initiated
by
complaint. [Sec. 5,
Rule 1]
It may be filed
initially either in the
MTC or the RTC.
CIVIL PROCEDURE
Some special civil
actions do not have to
be based on a cause
of
action
(e.g.
interpleader).
[1
Regalado 771, 2010
Ed.]
Venue is generally
governed
by
the
general
rules
on
venue, except as
otherwise indicated by
special
rules.
[1
Regalado 771, 2016
Ed.]
Initiated by complaint
or
petition.
[1
Regalado 770, 2010
Ed.]
Some special civil
actions can only be
filed in the MTC (e.g.
forcible entry and
unlawful
detainer)
while there are some
which can NOT be
commenced in the
MTC (e.g. certiorari).
[1 Regalado 771,
2010 Ed.]
3. JURISDICTION AND VENUE
Jurisdiction over special civil actions is
determined by the Constitution [e.g. Sec. 5, Art.
VIII, for the Supreme Court] and statutes (e.g.
B.P. 129).
Venue is a procedural matter and generally set
by the Rules of Court. Hence, the venue of civil
actions is determined by the general rules on
venue, unless otherwise subject to special
REMEDIAL LAW
rules for special civil actions (e.g. quo
warranto). [1 Regalado 771, 2010 Ed.]
4. INTERPLEADER
Definition
An interpleader is a special civil action filed by
a person against whom two conflicting claims
are made upon the same subject matter and
over which he claims no interest whatsoever,
or if he has an interest, it is one which, in whole
or in part, is not disputed by the claimants.
[Sec. 1, Rule 62]
Purpose of the remedy
1. To compel the conflicting claimants to
interplead and litigate their several claims
among themselves. [Sec. 1, Rule 62]
2. Not to protect a person against double
liability but to protect him from double
vexation in respect of one liability. [Beltran
v. PHHC, G.R. No. L-25138 (1969)
Interpleader vs. Intervention
Interpleader
Intervention
Ancillary action, i.e.
Original action
there is a pending
action
Intervenor claims an
interest
that
is
Plaintiff either has
adverse
to
at
least
1. No interest or;
one of the existing
2. An interest in the
parties, or will be
subject matter
adversely affected
undisputed by
by judgment in favor
the other parties
of either of the
existing parties
Defendants to a
complaint-inDefendants are sued
intervention
are
to be impleaded
parties to a pending
suit
[1 Regalado 321, 2010 Ed.]
a. Requisites for Interpleader
a. There must be 2 or more claimants with
adverse or conflicting interest;
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b. The conflicting claims involves the same
subject matter;
c. The conflicting claims are made against
the same person; and
d. The plaintiff has no claim upon the subject
matter of the adverse claims or if he has
an interest at all, such interest is not
disputed by the claimants. [Sec. 1, Rule
62]
b. When to File
General rule: An action for Interpleader should
be filed within a reasonable time after a
dispute has arisen without waiting to be sued
by either of the contending parties. Otherwise,
it may be barred by laches. [Wack Wack Golf &
Country Club v. Lee Won, G.R. No. L-23851
(1976)]
Exception: Where the stakeholder acts with
reasonable diligence in view of environmental
circumstances, the remedy is not barred.
[Wack Wack Golf & Country Club v. Lee Won,
G.R. No. L-23851 (1976)]
Who may file
The person against whom the conflicting
claims are made and claims no interest in the
subject matter. [Sec. 1, Rule 62]
Procedure
Filing of an action against the conflicting
claimants to compel them to interplead and
litigate their several claims among
themselves [Sec. 1, Rule 62]
↓
Court order upon the filing of the complaint
requiring the conflicting claimants to
interplead with one another. If the interests
of justice so require, the court may direct in
such order that the subject matter be paid or
delivered to the court [Sec. 2, Rule 62]
↓
Summons served upon the conflicting
claimants, together with a copy of the
complaint and order [Sec. 3, Rule 62]
↓
REMEDIAL LAW
Answer of each claimant setting forth his
claim within 15 days from service of the
summons upon him, serving a copy thereof
upon each of the other conflicting claimants
who may file their reply thereto as provided
by the ROC.
Counterclaims, cross-claims, third-party
complaints and responsive pleadings
thereto, as provided by the ROC, may be
filed by the parties in an interpleader action.
[Sec. 5, Rule 62]
OR
Motion to dismiss filed by each claimant
within the time for filing an answer on the
ground of impropriety of the interpleader
action or on other appropriate grounds
specified in Rule 16. The period to file the
answer shall be tolled and if the motion is
denied, the movant may file his answer
within the remaining period, but which shall
not be less than 5 days in any event,
reckoned from notice of denial [Sec. 4, Rule
62]
Note: Even if a motion to dismiss is now a
prohibited pleading under the Amended
Rules, it is submitted that a motion to
dismiss can still be filed on the basis of
the impropriety of an interpleader, even if
such ground is not among those listed for an
allowable motion to dismiss under Sec. 12,
Rule 15. This is because the rules of
ordinary civil actions are subject to the
special rules prescribed for a special civil
action. [Sec. 3(c), Rule 1] In light of Sec. 3(c),
Rule 1 as well, the grounds for an allowable
motion to dismiss should likewise be allowed
as proper grounds for a motion to dismiss an
interpleader. [see Sec. 12(a)(1-3), Rule 15]
↓
Pre-trial [Sec. 6, Rule 62]
↓
Determination of the claimants’ respective
rights and adjudicate their several claims
[Sec. 6, Rule 62]
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Effect of failure to answer
If any claimant fails to plead within the time
herein fixed, the court may, on motion,
a. Declare him in default and
b. Render judgment barring him from any
claim in respect to the subject matter.
[Sec. 5, Rule 62]
REMEDIAL LAW
The only issue that can be raised in such a
petition is the question of construction or
validity of provisions in an instrument or
statute. Corollary is the general rule that such
an action must be justified, as no other
adequate relief is available. [2 Riano 142,
2016 Bantam Ed.]
c. Dismissal
Proper Grounds to Dismiss an Interpleader
As mentioned above, the following are
submitted to be the allowable grounds for a
motion to dismiss an interpleader under the
Amended Rules, to wit:
1. Impropriety of Interpleader [Sec. 4, Rule
62]
2. Allowable grounds for a motion to dismiss,
namely:
a. Lack of jurisdiction over the subject
matter
b. Litis pendentia
c. Res judicata
d. Prescription [Sec. 12(a), Rule 15]
5. DECLARATORY
RELIEFS
AND SIMILAR REMEDIES
Two types of actions under Rule 63
1. Petition for declaratory relief, and
2. Similar remedies
a. Action for reformation of an instrument;
b. Action to quiet title or remove clouds
therefrom, and
c. Action to consolidate ownership under
Art. 1607, CC
[Sec. 1, Rule 63]
Definition
Declaratory relief is an action by any person
interested in a deed, will, contract or other
written instrument, executive order or
resolution, to determine any question of
construction or validity arising from the
instrument, executive order or regulation, or
statute, and for a declaration of his rights and
duties thereunder. [Sec. 1, Rule 63; Jumamil v.
Cafe, G.R. No. 144570 (2005)]
Purpose
To secure an authoritative statement of the
rights and obligations of the parties under a
statute, deed, contract, etc. for their guidance
in its enforcement or compliance and not to
settle issues arising from its alleged breach.
[Tambunting v. Sumabat and Baello, G.R. No.
144101 (2005)]
Subject matter of Petition for Declaratory
Relief
The subject matter in a petition for declaratory
relief is any of the following:
1. Deed
2. Will
3. Contract or other written instrument
4. Statute
5. Executive order or regulation
6. Ordinance, or
7. Any other government regulation.
[Sec. 1, Rule 63]
Note: The enumeration is exclusive. Hence,
an action not based on any of those
enumerated cannot be the proper subject of
declaratory relief. [Mangahas v. Paredes, G.R.
No. 157866 (2007)]
Where to File Declaratory Relief
Jurisdiction
General Rule: Exclusive and original
jurisdiction is with the RTC since the subject in
a petition for declaratory relief is incapable of
pecuniary estimation. [Sec. 19, B.P.129, as
amended by R.A. 7691].
The SC has no original jurisdiction over these
petitions, only appellate jurisdiction [Liga ng
mga Barangay National v. City Mayor of
Manila, G.R. No. 154599 (2004)]
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Exception: Where the action is a proceeding
similar to declaratory relief (e.g. quieting of title
to real property), jurisdiction will depend on the
assessed value of the property. [Malana v.
Tappa, G.R. No. 181303 (2009)]
Venue: General rule on venue applies, see
Rule 4.
a. Who May File Action
Any person:
a. Interested under a deed, will, contract or
other written instrument,
b. Whose rights are affected by a statute,
executive order or regulation, ordinance, or
any other governmental regulation, and
c. Who files before the breach or violation
thereof.
[Sec. 1, Rule 63]
Parties to the action
a. All persons who have or claim any
interest which would be affected by the
declaration [Sec. 2, Rule 63]
b. In any action which involves the validity of
a statute, executive order or regulation, or
any other governmental regulation, the
Solicitor General shall be notified by the
party assailing the same and shall be
entitled to be heard upon such question
[Sec. 3, Rule 63]
c. In any action involving the validity of a local
government
ordinance,
the
corresponding prosecutor or attorney
of the local governmental unit involved
shall be similarly notified and entitled to be
heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall
also be notified and entitled to be heard
[Sec. 4, Rule 63]
Note: Non-joinder of interested persons is not
a jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules. [Baguio
Citizens Action v. City Council of Baguio, G.R.
No. L-27247 (1983)]
REMEDIAL LAW
b. Requisites
a. The subject matter of the controversy must
be a deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance
b. The terms of said documents and the
validity thereof are doubtful and require
judicial construction;
c. There must have been no breach of the
documents in question
d. There must be an actual justiciable
controversy or the "ripening seeds" of one
between persons whose interests are
adverse
e. The issue must be ripe for judicial
determination; and
f. Adequate relief is not available through
other means or other forms of action or
proceeding.
[Republic v. Roque, G.R. No. 204603 (2013)]
A justiciable controversy refers to an existing
case or controversy appropriate or ripe for
judicial determination, not one that is
conjectural or merely anticipatory [Velarde v.
Social Justice Society, G.R. No. 159357
(2004)]
c. When Court May Refuse To
Make Judicial Declaration
General Rule: The court, motu proprio or upon
motion, may refuse to exercise the power to
declare rights and to construe instruments in
any case where a decision would not
terminate the uncertainty or controversy
which gave rise to the action, or in any case
where the declaration or construction is not
necessary
and
proper
under
the
circumstances.
Exception: Actions falling under the 2nd par of
Sec. 1, Rule 63
a. An action for the reformation of an
instrument, recognized under Articles
1359 to 1369 of the Civil Code;
b. An action to quiet title, authorized by
Articles 476 to 481 of the Civil Code; and
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c. An action to consolidate ownership
required by Article 1607 of the Civil Code in
a sale with a right to repurchase.
[Sec. 5, Rule 63]
REMEDIAL LAW
declaratory relief because of Sec. 5, Rule 63 on
when the court’s action on such a petition is
discretionary.
i. Reformation of an Instrument
d. Conversion to Ordinary Action
The action may be converted into an ordinary
action if:
a. Before the final termination of the case,
b. A breach or violation of an instrument or a
statute, executive order, regulation,
ordinance, or any other governmental
regulation should take place.
Note: The parties shall be allowed to file such
pleadings as may be necessary or proper.
[Sec. 6, Rule 63]
A petition for declaratory relief is filed before
the occurrence of any breach or violation of the
deed, contract, statute, ordinance or executive
order or regulation. It will not prosper when
brought after a contract or a statute has already
been breached or violated. If there has
already been a breach, the appropriate
ordinary civil action and not declaratory relief
should be filed [City of Lapu-Lapu v. PEZA,
G.R. No. 184203 (2014)]
e. Proceedings Considered
Similar Remedies
as
These remedies are considered similar to
declaratory relief because they also result in
the adjudication of legal rights of the litigants,
often without the need of execution to carry the
judgment into effect:
a. An action for the reformation of an
instrument, recognized under Articles
1359 to 1369 of the Civil Code;
b. An action to quiet title, authorized by
Articles 476 to 481 of the Civil Code; and
c. An action to consolidate ownership
required by Article 1607 of the Civil Code in
a sale with a right to repurchase.
[Malana v. Tappa, G.R. No. 181303 (2009)]
However, a distinction must be made between
these proceedings and an action for
Definition
Reformation is a remedy in equity, whereby a
written instrument is made or construed so as
to express or conform to the real intention of
the parties, where some error or mistake has
been committed. [Multi-Ventures Capital v.
Stalwart Management Services Corp., G.R.
No. 157439 (2007)]
What are the requisites for reformation?
1. There must have been a meeting of the
minds of the parties to the contract;
2. The instrument does not express the true
intention of the parties; and
3. Failure of the instrument to express the true
intention of the parties is due to mistake,
fraud, inequitable conduct or accident.
[Multi-Ventures
Capital
v.
Stalwart
Management Services Corp., G.R. No. 157439
(2007)]
Burden of proof
The onus probandi is upon the party who
insists that the contract should be reformed.
[Multi-Ventures
Capital
v.
Stalwart
Management Services Corp, G.R. No. 157439
(2007)]
Prescriptive period
In an action for reformation, the plaintiff has 10
years within which to bring it from the time the
right of action accrued. [Veluz v. Veluz, G.R.
No. L-23261 (1968)]
CIVIL CODE PROVISIONS ON THE
REFORMATION OF AN INSTRUMENT
When the remedy is reformation of the
instrument
When, there having been a meeting of the
minds of the parties to a contract, their true
intention is not expressed in the instrument
purporting to embody the agreement, by
reason of mistake, fraud, inequitable conduct
or accident, one of the parties may ask for the
reformation of the instrument to the end that
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REMEDIAL LAW
such true intention may be expressed. [Art.
1359, CC]
in conflict with the provisions of the Civil Code.
[Art. 1360, CC]
When a mutual mistake of the parties causes
the failure of the instrument to disclose their
real agreement, the said instrument may be
reformed [Art. 1361, CC]
There shall be no reformation in the following
cases:
1. Simple donations inter vivos wherein no
condition is imposed,
2. Wills, or
3. When the real agreement is void.
[Art. 1366, CC]
If one party was mistaken and the other acted
fraudulently or inequitably in such a way that
the instrument does not show their true
intention, the former may ask for the
reformation of the instrument [Art. 1362, CC]
When one party was mistaken and the other
knew or believed that the instrument did not
state their real agreement, but concealed that
fact from the former, the instrument may be
reformed [Art. 1363, CC]
When through the ignorance, lack of skill,
negligence or bad faith on the part of the
person drafting the instrument or of the clerk or
typist, the instrument does not express the true
intention of the parties, the courts may order
that the instrument be reformed [Art. 1364, CC]
If two parties agree upon the mortgage or
pledge of real or personal property, but the
instrument states that the property is sold
absolutely or with a right of repurchase,
reformation of the instrument is proper [Art.
1365, CC]
Reformation may be ordered at the instance of
either party or his successors in interest, if the
mistake was mutual; otherwise, upon petition
of the injured party, or his heirs and assigns
[Art. 1368, CC]
When the remedy is for annulment of the
contract
If mistake, fraud, inequitable conduct, or
accident has prevented a meeting of the minds
of the parties, the proper remedy is not
reformation of the instrument but annulment
of the contract. [Art. 1359, CC]
The principles of general law on reformation of
instruments are adopted insofar as they are not
When one of the parties has brought an action
to enforce the instrument, he cannot
subsequently ask for its reformation [Art. 1367,
CC]
ii. Consolidation of Ownership
In case of real property, the consolidation of
ownership in the vendee by virtue of the failure
of the vendor to comply with the provisions of
Art. 1616 shall not be recorded in the Registry
of Property without a judicial order, after the
vendor has been duly heard. [Art. 1607, CC]
The vendor cannot avail himself of the right of
repurchase without returning to the vendee the
price of the sale, and in addition:
1. The expenses of the contract, and any
other legitimate payments made by reason
of the sale;
2. The necessary and useful expenses made
on the thing sold.
[Art. 1616, CC]
Purpose
The action brought to consolidate ownership is
not for the purpose of consolidating the
ownership of the property in the person of the
vendee or buyer but for the registration of the
property. The lapse of the redemption period
without the seller a retro exercising his right of
redemption consolidates ownership or title
upon the person of the vendee by operation of
law. [Rosario v. Rosario, G.R. No. L-13018
(1960)]
iii. Quieting of Title to Real Property
Whenever there is a cloud on title to real
property or any interest therein, by reason of
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any instrument, record, claim, encumbrance or
proceeding which is apparently valid or
effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and
may be prejudicial to said title, an action may
be brought to remove such cloud or to quiet
the title.
An action may also be brought to prevent a
cloud from being cast upon title to real
property or any interest therein.
[Art. 476, CC]
The plaintiff must have legal or equitable title
to, or interest in the real property which is the
subject-matter of the action. He need not be in
possession of said property. [Art. 477, CC]
Requisites
1. The plaintiff or complainant has a legal or
an equitable title to or interest in the real
property subject of the action, and
2. The deed, claim, encumbrance, or
proceeding claimed to be casting cloud on
his title must be shown to be in fact invalid
or inoperative despite its prima facie
appearance of validity or legal efficacy.
[Mananquil v. Moico, G.R. No. 180076 (2012)]
6. REVIEW OF JUDGMENTS
AND FINAL ORDERS OR
RESOLUTION
OF
THE
COMMISSION
ON
ELECTIONS
AND
THE
COMMISSION ON AUDIT
Scope
Review of judgments and final orders or
resolutions of the COMELEC and the COA.
[Sec. 1, Rule 64]
A judgment or final order or resolution of the
COMELEC and the COA may be brought by
the aggrieved party to the SC on certiorari
under Rule 65, except as hereinafter provided
[Sec. 2, Rule 64], not on appeal by certiorari
under Rule 45.
Reglementary period
The petition shall be filed within 30 days from
notice of the judgment or final order or
resolution sought to be reviewed [Sec. 3, Rule
64].
The 30-day period refers to a petition directed
against a final order or judgement of the
commission concerned. As such, if a petition
for certiorari is directed against an interlocutory
order, the 60-day period in Rule 65 should
apply. [2 Riano 178, 2016 Bantam Ed.]
Interruption of the 30-day period
The filing of a motion for new trial or
reconsideration of said judgment or final
order or resolution, if allowed under the
procedural rules of the Commission
concerned, shall interrupt the period herein
fixed.
• If the motion is denied, the aggrieved
party may file the petition within the
remaining period, but which shall not
be less than 5 days in any event,
reckoned from notice of denial [Sec. 3,
Rule 64]
a. Distinctions in the Application
of Rule 65 to Judgments of the
COMELEC and COA and the
Application of Rule 65 to Other
Tribunals,
Persons,
and
Officers
Rule 64
Directed
to
judgments,
final
orders or resolutions
of COMELEC and
COA. [Sec. 1]
Filed within 30 days
from notice of the
judgment. [Sec. 3]
The denial of a prior
motion
for
reconsideration
or
new trial gives the
filing part time to file
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Rule 65
Directed to any
tribunal, board, or
officer
exercising
judicial or quasijudicial
functions.
[Sec. 1]
Filed within 60 days
from notice of the
judgment. [Sec. 4]
The denial of the
motion
for
reconsideration or
new trial gives the
filing party a fresh
U.P. LAW BOC
within the remainder
of the 30-day period,
but never less than 5
days reckoned from
the notice of denial.
[Sec. 3]
CIVIL PROCEDURE
period of 60 days for
the filing of a Rule
65
petition
for
certiorari. [Sec. 4]
7. CERTIORARI, PROHIBITION,
AND MANDAMUS
a. Definitions and Distinctions
Certiorari is a writ emanating from the proper
court directed against any tribunal, board or
officer exercising judicial or quasi-judicial
functions, the purpose of which is to correct
errors of jurisdiction - i.e. without or in excess
of jurisdiction, or with grave abuse of discretion
amounting to the same. [Sec. 1, Rule 65]
Prohibition is a writ issued by the proper court
and directed against any tribunal, corporation,
board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions,
commanding the respondent to desist from
further proceedings in the action or matter
specified therein [Sec. 2, Rule 65]
Mandamus is a writ to compel a tribunal,
corporation, board, officer or person to do the
act required to be done to protect the rights of
the petitioner when the respondent unlawfully
neglects the performance of an act which the
law specifically enjoins as a duty resulting from
an office, trust, or station, or excludes another
from the use and enjoyment of a right or office
to which such other is entitled, and there is no
other plain, speedy and adequate remedy in
the ordinary course of law.
[Sec. 3, Rule 65]
b. Requisites
Certiorari
a. Respondent is exercising judicial or quasijudicial function;
b. Respondent acted without or in excess of
its jurisdiction or acted with grave abuse of
REMEDIAL LAW
discretion amounting to lack of jurisdiction;
and
c. There must be no appeal or no other plain,
speedy, and adequate remedy.
[Sec. 1, Rule 65; Barbers v. COMELEC, G.R.
No. 165691 (2005)]
Notes on certiorari:
a. A respondent is said to be exercising
judicial functions where he has the power
to determine what the law is and what the
legal rights of parties are.
b. Quasi-judicial function is a term which
applies to the action of administrative
officers or bodies to investigate facts and
draw conclusions. [2 Riano 195, 2016
Bantam Ed.]
c. The acts that may be the object of the
petition are:
1. Acts without jurisdiction - denotes
that the tribunal, board, or officers
acted with absolute lack of authority
2. Excess of jurisdiction - when the
respondent exceeds its power or acts
without any statutory authority
3. Grave abuse of discretion - connotes
capricious and whimsical exercise of
judgement as to be equivalent to lack
or excess of jurisdiction.
[2 Riano 205, 2016 Bantam Ed.]
Prohibition
a. Respondent is exercising judicial or quasijudicial function;
b. Respondent acted without or in excess of
its jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction;
and
c. There must be no appeal or no other plain,
speedy, and adequate remedy.
[Sec. 2, Rule 65; Barbers v. COMELEC, G.R.
No. 165691 (2005)]
Mandamus
a. Respondent unlawfully
1. Neglects the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust, or
station, or
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2. Excludes another from the use and
enjoyment of a right or office to which
such other is entitled, and
b. There is no other plain, speedy and
adequate remedy in the ordinary course of
law.
[Sec. 3, Rule 65]
Discretionary vs. Ministerial act
Discretionary act
Ministerial act
One which an officer
or tribunal performs
in a given state of
facts, in a prescribed
The law imposes a manner,
in
duty upon a public obedience to the
officer and gives him mandate of a legal
the right to decide authority,
without
how or when the duty regard to or the
shall be performed.
exercise of his own
judgment upon the
propriety
or
impropriety of the act
done.
[Roble Arrastre, Inc. v. Villaflor, G.R. No.
128509 (2006)]
Note: The common requisite among certiorari,
prohibition, and mandamus is that there is no
other plain, speedy, or adequate remedy in
the ordinary course of law. [Secs. 1, 2, 3,
Rule 65]
c. When Petition for Certiorari,
Prohibition, and Mandamus is
Proper
Certiorari is a corrective remedy used to
correct errors of jurisdiction, not errors of
judgment.
Note: Errors of judgement are those errors
arising from erroneous conclusions of law.
They are reviewable by appeal, not by
certiorari. [Heirs of Valientes v. Ramas, 638
SCRA 444]
Questions of fact cannot be raised in an original
action for certiorari. Only established or
REMEDIAL LAW
admitted facts may be considered. [Suarez v.
NLRC, G.R. No. 124723 (1998)]
General rule: Where an appeal is available,
certiorari will not lie [Jose v. Zulueta, G.R. No.
L-16598 (1961)]
Exceptions:
a. Where appeal does not constitute a speedy
and adequate remedy;
b. Where orders were also issued either in
excess of or without jurisdiction;
c. For certain special considerations, as
public welfare or public policy;
d. Where, in criminal actions, the court rejects
the rebuttal evidence for the prosecution
as, in the case of acquittal, there could be
no remedy;
e. Where the order is a patent nullity; and
f. Where the decision in the certiorari case
will avoid future litigations.
[Villarica Pawnshop v. Gernale, G.R. No.
163344 (2009)]
Prohibition
Prohibition is a preventive remedy. However,
to prevent the respondent from performing the
act sought to be prevented during the
pendency of the proceedings for the writ, the
petitioner should obtain a restraining order
and/or a writ of preliminary injunction. [1
Regalado 801, 2010 Ed.]
The office of prohibition is not to correct errors
of judgment but to prevent or restrain
usurpation by inferior tribunals and to compel
them to observe the limitation of their
jurisdictions. [3 Herrera 321, 2006 Ed.]
General rule: Prohibition, as a rule, does NOT
lie to restrain an act which is already fait
accompli (one that has already been done)
[Cabañero and Mangornong v. Torres, G.R.
No. L-43352 (1935)]
Exception: A writ of prohibition will lie to
prevent the unlawful creation of a new province
by those in the corridors of power who could
avoid judicial intervention and review by merely
speedily and stealthily completing the
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commission of such illegality. [Tan
COMELEC, G.R. No. 73155 (1986)]
v.
Mandamus
There must be a well-defined, clear legal right
or duty. [Valmonte v. Belmonte, G.R. No.
74930 (1989)] The duty must be enjoined by
law; hence, a contractual duty cannot be
enforced by mandamus [Province of
Pangasinan v. Reparations Commission, G.R.
No. L-27448 (1977)]
The respondent must be exercising a
ministerial duty. [Roble Arrastre, Inc. v.
Villaflor, G.R. No. 128509 (2006)] As such,
mandamus “will lie to compel discharge of the
discretionary duty itself but not to control the
discretion to be exercised. In other words, a
mandamus can be issued to require action, but
not specific action.” [Association of Small
Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, G.R. No. 78742 (1989)]
However, in extreme situations generally in
criminal cases, mandamus lies to compel the
performance by the fiscal of discretionary
functions where his actuations are tantamount
to a willful refusal to perform a required duty. [1
Regalado 804, 2010 Ed.]
Grounds:
When any tribunal, corporation, board, officer
or person unlawfully
a. NEGLECTS the performance of an act
which the law specifically enjoins as a duty
resulting from an office, trust, or station, or
b. EXCLUDES another from the use and
enjoyment of a right or office to which such
other is entitled.
[Sec. 3, Rule 65]
Mandamus is the proper remedy when the
respondent unlawfully excludes the petitioner
from a public office, position or franchise to
which the latter is entitled without usurping,
intruding into or unlawfully holding the office.
However, if the respondent claims any right to
the office and usurps, intrudes into or
unlawfully holds it against the petitioner, quo
warranto is the proper remedy [Sec. 1, Rule 66]
REMEDIAL LAW
d. Injunctive Relief
General rule
The petition shall not interrupt the course of
the principal case
• The public respondent shall proceed with
the principal case within 10 days from filing
of the petition for certiorari with the higher
court, absent a TRO or preliminary
injunction, or upon its expiration.
• Failure of the public respondent to proceed
with the principal case may be a ground for
an administrative charge.
[Sec. 7, Rule 65, as amended by A.M. No. 077-12-SC]
Exceptions:
a. When a TRO or a writ of preliminary
injunction has been issued, enjoining the
public respondent from further proceeding
with the case. [Sec. 7, Rule 65, as
amended by A.M. No. 07-7-12-SC]
b. The doctrine of judicial courtesy: Even if
there is no injunction issued, the lower
court should defer to the higher court
where there is a strong probability that the
issues before the higher court would be
rendered moot and moribund as a result of
the continuation of proceedings in the court
of origin. [Republic v. Sandiganbayan, G.R.
No. 166859 (2006)]
e. Distinguish: Certiorari, Appeal
by Certiorari, and Article VIII,
Section 1 of the Constitution
Certiorari as a
mode of appeal
[Rule 45]
A continuation of
the
appellate
process over the
original case
Seeks to review
final judgment or
final orders
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Certiorari as a
special civil action
[Rule 65]
An original action and
not a mode of appeal
May
be
directed
against
an
interlocutory order of
the court or where no
appeal or plain or
speedy remedy is
U.P. LAW BOC
Raises
only
questions of law
Filed within 15 days
from
notice
of
judgment or final
order
appealed
from, or of the
denial
of
petitioner’s motion
for reconsideration
or new trial.
Extension of 30
days
may
be
granted
for
justifiable reasons.
Does not require a
prior motion for
reconsideration
Stays the judgment
appealed from
Parties are the
original parties with
the appealing party
as the petitioner
and the adverse
party
as
the
respondent, without
impleading
the
lower court or its
judge
CIVIL PROCEDURE
REMEDIAL LAW
available
in
the
ordinary course of law
Raises questions of
jurisdiction,
i.e.
whether a tribunal,
board
or
officer
exercising judicial or
quasi-judicial
functions has acted
without jurisdiction or
in
excess
of
jurisdiction or with
grave
abuse
of
discretion amounting
to lack of jurisdiction
But the SC/CA may
require a comment
before giving the
petition due course.
[1 Regalado 612, 2010 Ed.]
Filed not later than 60
days from notice of
judgment, order, or
resolution sought to
be assailed.
Note: The remedies of appeal and certiorari
are mutually exclusive and not alternative or
successive. Thus, a petitioner must show valid
reasons why the issues raised in his petition for
certiorari could not have been raised on
appeal. [Villamar-Sandoval v. Cailipan, G.R.
No. 200727 (2013)]
Extension
granted
only
under
exceptional
cases
(infra).
Motion
for
reconsideration is a
condition precedent,
subject to exceptions
Does not stay the
judgment or order
subject of the petition,
unless enjoined or
restrained
The tribunal, board, or
officer,
exercising
judicial
or
quasijudicial functions is
impleaded
as
respondent
Review by the SC is
discretionary and
will be granted only
when there are
special or important
reasons [Sec. 6,
Rule 45]
If
the
order
is
sufficient in form and
substance, the RTC
shall:
1. order respondents
to comment, then
2. (a) hear the case or
(b) require the parties
to file memoranda.
Expanded Scope of Certiorari
While Rule 65 specifically requires that the
respondent be a tribunal, board, or officer
exercising judicial or quasi-judicial functions,
recent pronouncements of the Court have
extended the reach of the petition to
functions that are neither judicial or quasijudicial. [Araullo v. Aquino, G.R. No. 209287
(2014)]
f. Distinguish:
Prohibition,
Mandamus, and Injunction
Injunction
Ordinary
civil
action
Directed only to
the party litigants,
without in any
manner
interfering
with
the court
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Prohibition
Special civil action
Directed to the court
itself, commanding it to
cease from the exercise
of a jurisdiction to which
it has no legal claim
U.P. LAW BOC
Does not involve
the jurisdiction of
the court
CIVIL PROCEDURE
It is based on the
ground that the court
against whom the writ is
sought
had
acted
without or in excess of
jurisdiction
Where to file
Supreme Court
Main action or
provisional
Main action
remedy
[2 Riano 58, 2016 Bantam Ed.]
Mandamus
Special civil action
Directed against a
Directed against a tribunal,
litigant
corporation, board,
or officer
Purpose is for the
Purpose is to either
tribunal,
refrain the defendant
corporation, board,
from performing an
or
officer,
to
act or to perform not
perform
a
necessarily a legal
ministerial and legal
and ministerial duty
duty
[2 Riano 59, 2016 Bantam Ed.]
Injunction
Ordinary civil action
g. When and Where to File Petition
Petition and contents
A verified petition is
a. Filed in the proper court
1. Alleging the facts with certainty
2. Praying for the proper judgment; and
b. Accompanied by:
1. A certified true copy of the judgment,
order, resolution subject thereof
2. Copies of all pleadings and relevant
and pertinent documents
3. A sworn certification of non-forum
shopping
[Secs. 1-3, Rule 65]
When to file
Not later than 60 days from notice of judgment,
order, or resolution. If a motion for
reconsideration or new trial is filed, the 60-day
period shall be counted from notice of denial of
motion. [Sec. 4, Rule 65]
REMEDIAL LAW
RTC
Court of Appeals
only
Court of Appeals
or the
Sandiganbayan
Commission on
Elections
Subject to the doctrine
of hierarchy of courts
and
only
when
compelling
reasons
exist for not filing the
same with the lower
courts
[Uy
v.
Contreras, G.R. No.
111416-17 (1994)]
If the petition relates to
an act or an omission of
an MTC, corporation,
board, officer or person
[Sec. 4, Rule 65, as
amended by A.M. No.
07-7-12-SC]
If the petition involves
an act or an omission of
a quasi-judicial agency,
unless
otherwise
provided by law or
rules [Sec. 4, Rule 65,
as amended by A.M.
No. 07-7-12-SC]
Whether or not in aid of
appellate jurisdiction
[Sec. 4, A.M. No. 07-712-SC]
In
election
cases
involving an act or an
omission of an MTC or
RTC [Sec. 4, A.M. No.
07-7-12-SC]
Rule on extension of time for filing
General rule: The 60-day period within which
to file a petition for certiorari under Rule 65 is
non-extendible.
Exception: Under the following exceptional
circumstances, the Court may extend the
period according to its sound discretion:
a. Most persuasive and weighty reasons;
b. To relieve a litigant from an injustice not
commensurate with his failure to comply
with the prescribed procedure;
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c. Good faith of the defaulting party by
immediately paying within a reasonable
time from the time of the default;
d. The existence of special or compelling
circumstances;
e. The merits of the case;
f. A cause not entirely attributable to the fault
or negligence of the party favored by the
suspension of the rules;
g. A lack of any showing that the review
sought is merely frivolous and dilatory;
h. The other party will not be unjustly
prejudiced thereby;
i. Fraud, accident, mistake or excusable
negligence without appellant’s fault;
j. Peculiar legal and equitable circumstances
attendant to each case;
k. In the name of substantial justice and fair
play;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge
guided by all the attendant circumstances.
[Thenamaris Philippines, Inc. v. CA, G.R. No.
191215 (2014)]
h. Exceptions to Filing of Motion
for Reconsideration Before
Filing Petition
General rule: A motion for reconsideration
is an essential precondition for the filing of a
petition
for
certiorari,
prohibition,
or
mandamus. It is a plain, speedy, and adequate
remedy.
• This is to enable the lower court, in the
first instance, to pass upon and correct
its mistakes without the intervention of
the higher court. [Teng v. Pahagac,
G.R. No. 169704 (2010)]
Exceptions:
An MR may be dispensed with in some cases,
such as:
a. Where the order is a patent nullity;
b. Where questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon in
the lower court;
REMEDIAL LAW
c. Where there is urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
Government;
d. Where under the circumstances, an MR
would be useless, as where the court had
already indicated that it would deny any
MR of its questioned order;
e. Where the petitioner was deprived of due
process and there is extreme urgency for
relief;
f. Where, in a criminal case, relief from an
order of arrest is urgent and granting such
relief by trial court is improbable;
g. Where the proceedings in the lower court
are a nullity for lack of due process;
h. Where the proceeding was ex-parte or in
which the petitioner had no opportunity to
object;
i. Where the issue raised is one purely of law
or where public interest is involved;
j. Where the subject matter of the action is
perishable.
[Ombudsman v. Laja, G.R. No. 169241 (2006)]
i. Reliefs Petitioner is Entitled to
Reliefs
Court may:
a. Issue orders expediting the proceedings,
and it may also grant a temporary
restraining order or a writ of preliminary
injunction for the preservation of the rights
of the parties. [Sec. 7, Rule 65]
b. Incidental reliefs as law and justice may
require. [Secs. 1-2, Rule 65]
c. Other reliefs prayed to which the petitioner
is entitled. [Sec. 8, Rule 65]
d. Disciplinary sanctions for erring lawyers
for patently dilatory and unmeritorious
petitions for certiorari. [Sec. 8, Rule 65]
Prayers
Certiorari
a. That the judgment be rendered annulling or
modifying the proceedings of such tribunal,
board or officer; and
b. Granting such incidental reliefs as law and
justice may require [Sec. 1, Rule 65]
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Prohibition
a. That
the
judgment
be
rendered
commanding the respondent to desist from
further proceedings in the action or matter
specified; or
b. Otherwise granting such incidental reliefs
as law and justice may require [Sec. 2,
Rule 65]
Mandamus
a. That
the
judgment
be
rendered
commanding the respondent, immediately
or at some other time to be specified by the
court, to do the act required to be done to
protect the rights of the petitioner; and
b. To pay the damages sustained by the
petitioner by reason of the wrongful acts of
the respondent [Sec. 3, Rule 65]
REMEDIAL LAW
lawyers for patently dilatory and
unmeritorious petitioner for certiorari.
[Sec. 8, Rule 65]
8. QUO WARRANTO
A quo warranto proceeding is the proper
legal remedy to determine the right or title to
the contested public office and to oust the
holder from its enjoyment. [Defensor-Santiago
v. Guingona, Jr., G.R. No. 134577 (1998)]
Literally means “by what authority”, it is a
prerogative writ by which the court can call
upon any person to show by what warrant he
holds a public office or exercises a public
franchise. [Tecson v. COMELEC, G.R. No.
161434 (2004)]
j. Acts or Omissions of FirstLevel/Regional Trial Courts in
Election Cases
Subject matter
An action for the usurpation of a public office,
position or franchise. [Sec. 1, Rule 66]
In election cases involving an act or omission
of a municipal or RTC, the petition [for
certiorari, prohibition, or mandamus] shall be
filed exclusively with the COMELEC, in aid of
its appellate jurisdiction. [Sec. 4, par. 3, Rule
65 as amended by A.M. No. 07-7-12- SC
(2007)]
Against whom may the action be brought
1. A PERSON who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position, or franchise
• Note: Sec. 2, Article XI of the
Constitution allows the institution of a
quo warranto action against an
impeachable officer. After all, a quo
warranto petition is predicated on
grounds distinct from those of
impeachment. The former questions
the validity of a public officer’s
appointment while the latter indicts him
for so-called impeachable offenses
without questioning his title to the office
he holds [Republic v. Sereno, G.R. No.
237428 (2018)]
2. A PUBLIC OFFICER who does or suffers
an act, which, by the provision of law,
constitutes a ground for forfeiture of office;
or
3. An ASSOCIATION which acts as a
corporation within the Philippines without
being legally incorporated or without lawful
authority so to act. [Sec. 1, Rule 66]
k. Effects of Filing of
Unmeritorious Petition
an
The court may dismiss the petition if:
a. It finds the same patently without merit or
prosecuted manifestly for delay, or
b. If the questions raised therein are too
insubstantial to require consideration.
Effect of dismissal
The court may award in favor of the respondent
treble costs solidarily against the petitioner and
counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and
139-B.
• The Court may impose motu proprio,
based on res ipsa loquitur, other
disciplinary measures on erring
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When not proper
1. Against persons who usurp an office in a
private corporation [Calleja v. Panday,
G.R. No. 168696 (2006)]
2. If the dispute is as to the counting of votes
or on matters connected with the conduct
of the election, a quo warranto is not the
proper remedy but an election protest.
[Cesar v. Garrido, G.R. No. 30705 (1929)]
3. Acts or omissions, even if it relates to the
qualification of integrity, being a continuing
requirement but nonetheless committed
during the incumbency of a validly
appointed and/or validly elected official,
cannot be the subject of a quo warranto
proceeding. [Republic v. Sereno, G.R. No.
237428 (2018)]
Jurisdiction
1. Original jurisdiction to issue the writ of quo
warranto is vested in the SC, CA, and
RTC. [Sec. 5(1), Art. VIII, Constitution;
Secs. 9 and 21, B.P. 129]
2. Quo warranto actions against corporations
with regard to franchises and rights granted
to them, as well as the dissolution of
corporations now fall under the jurisdiction
of the RTC. [Sec. 5.2, RA No. 8799 in
relation to P.D. 902-A; Unilongo v. CA,
G.R. No. 123910 (1999)]
3. The usurpation of an office in a private
corporation falls under the jurisdiction of
the RTC under Sec. 5.2, R.A. 8799 in
relation to P.D. 902-A; Calleja v. Panday,
G.R. No. 168696 (2006)]
REMEDIAL LAW
a. Distinguish: Quo Warranto
Under the Rules of Court and
Quo Warranto Under the
Omnibus Election Code
Quo warranto in
electoral
Quo warranto
proceedings [Sec.
under Rule 66
253, Omnibus
Election Code]
Filed by whom
The OSG, either
mandatory
or
discretionary,
as
discussed below.
OR
A person claiming to Any voter
be entitled to a public
office or position
usurped
or
unlawfully held or
exercised by another
in his own name.
[Sec. 5, Rule 66]
Where filed
When Commenced
by
Solicitor If
against
the
General:
election of a Member
RTC Manila, CA, or of
Congress,
SC
regional, provincial
or city officer, file in
Otherwise:
the COMELEC
RTC with jurisdiction
over the territorial If
against
a
area
where municipal
or
respondent or any of barangay officer, file
the
respondents in the appropriate
resides, CA, or SC
RTC
or
MTC,
[Sec. 7, Rule 66]
respectively.
Period for filing
Within one year after
Within 10 days after
the cause of such
proclamation
of
ouster, or the right of
results
the petitioner to hold
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such
office
or
position, arose [Sec.
11, Rule 66]
Issue
Issue is legality of the
occupancy of the Issue is eligibility of
office by virtue of a the person elected.
legal appointment.
Grounds
(against occupants of public offices)
a. A person who
usurps, intrudes
into, or
unlawfully holds
or exercises a
public office,
position or
franchise; or
a. Ineligibility, or
b. A public officer
b. Disloyalty to the
who does or
Republic of the
suffers an act
Philippines
which, by the
provision of law,
constitutes a
ground for the
forfeiture of his
office
[Sec. 1, Rule 66]
Effect
When
the
respondent is found
The occupant who
guilty of usurping,
was
declared
intruding into, or
ineligible or disloyal
unlawfully holding or
will be unseated but
exercising a public
the petitioner may be
office, position or
declared the rightful
franchise, judgment
occupant of the
shall be rendered
office
if
the
that such respondent
respondent
is
be
ousted
and
disqualified and the
altogether excluded
petitioner received
therefrom, and that
the second number
the petitioner or
of votes. [Maquiling
relator, as the case
v. COMELEC, G.R.
may be, recover his
No. 195649 (2013)]
costs.
[Sec. 9, Rule 66]
REMEDIAL LAW
b. When Government Commences
an Action Against Individuals
or Associations
The Solicitor General or a public prosecutor,
a. Must bring the action (MANDATORY)
either
i.
When directed by the President, or
ii.
Upon complaint, where the OSG has
good reason to believe that any of the
cases in Sec. 1, Rule 66 exist. [Sec. 2,
Rule 66]
b. May bring the action
(DISCRETIONARY)
i.
At the request of another person, and
ii.
With the permission of the court
[Sec. 3, Rule 66]
c. When
Individual
Commence an Action
May
An individual may commence the action if he
claims to be entitled to the office or position
usurped or unlawfully held or exercised by
another. [Sec. 5, Rule 66]
• He must aver and be able to show that
he is entitled to the office in dispute,
otherwise the action may be dismissed
at any stage. [General v. Urro, G.R. No.
191560 (2011)]
A public utility may bring a quo warranto
action against another public utility which has
usurped the rights of the former granted under
a franchise. [Cui v. Cui, G.R. No. 39773 (1934)]
Contents of quo warranto petition
The petition shall set forth
a. The name of the person who claims to be
entitled thereto, if any,
b. With an averment of his right to the same
and that the respondent is unlawfully in
possession thereof.
[Sec. 6, Rule 66]
When quo warranto filed
General rule: An action for quo warranto must
be commenced within 1 year after the cause
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of such ouster, or the right of the petitioner to
hold such office or position, arose. [Sec. 11,
Rule 66]
- The failure to institute the action within the
reglementary period constitutes more than
a sufficient basis for its dismissal [Alejo v.
Marquez, G.R. No. L-29053 (1971)], since
it is not proper that the title to a public
office be subjected to continued
uncertainty [Villegas v. De la Cruz, G.R.
No. L-23752 (1965)]
Exception: The prescriptive period does not
apply if the failure to file the action can be
attributed to acts of a responsible government
officer and not of the dismissed employee.
[Romualdez-Yap v. CSC, et. al., G.R. No.
104226 (1993)]
The pendency of administrative remedies does
not operate to suspend the period of 1 year
within which a petition for quo warranto should
be filed. [Torres v. Quintos, G.R. No. L-3304
(1951)]
Reduction of period
The court may reduce the period provided by
the ROC for filing pleadings and for all other
proceedings in the action in order to secure the
most expeditious determination of the matters
involved therein consistent with the rights of the
parties. Such action may be given precedence
over any other civil matter pending in the court.
[Sec. 8, Rule 66]
d. Judgment in Quo Warranto
Action
When respondent is found guilty of usurping
into, intruding into, or unlawfully holding or
exercising a public office, position, or franchise,
judgment shall be rendered that:
a. Such respondent is ousted and altogether
excluded therefrom; and
b. Petitioner, as the case may be, recovers
his costs.
Note: Further judgment may be rendered
determining the respective rights in and to
the public office, position, or franchise of all
parties to the action as justice requires.
REMEDIAL LAW
[Sec. 9, Rule 66]
e. Rights of A Person Adjudged
Entitled to Public Office
When judgment is rendered in favor of a person
averred in the complaint to be entitled to the
public office, such person may take upon
himself:
a. The execution of the office after taking
the oath of office and executing any official
bond required by the law;
b. Demand of the respondent all the books
and papers in the respondent’s custody or
control appertaining to the office to which
judgment relates.
- If the respondent refuses or neglects to
deliver any book or paper pursuant to
such demand, he may be punished for
contempt as having disobeyed a lawful
order of the court. [Sec. 10, Rule 66]
f. Limitations
Nothing contained in Rule 66 shall be
construed:
a. To authorize an action against a public
officer or employee for his ouster from
office unless the same be commenced
within 1 year after the cause of such ouster,
or the right of the petitioner to hold office
arose, nor
b. To allow the person entitled to the office to
file for damages unless the action is
commenced within 1 year after the entry of
judgement establishing the petitioner’s
right to the office in question. [Sec. 11, Rule
66]
9. EXPROPRIATION
The power of eminent domain is an inherent
and indispensable power of the State. Also
called the power of expropriation, it is
described as the highest and most exact idea
of property that may be acquired for some
public purpose through a method in the nature
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REMEDIAL LAW
of a compulsory sale to the State [Manapat v.
CA, G.R. No. 110478 (2007)]
[Republic v. Philippine National Bank, G.R. No.
L-14158 (1961)]
Requisites
1. The property taken must be private
property;
2. There must be genuine necessity to take
the private property;
3. The taking must be for public use;
4. There must be payment of just
compensation; and
5. The taking must comply with due process
of law.
[Manapat v. CA, G.R. No. 110478 (2007)]
Where to file
File the complaint for expropriation in the RTC
where property is located. The MTC has no
jurisdiction since an action for expropriation is
incapable of pecuniary estimation. [Barangay
San Roque v. Heirs of Pastor, G.R. No. 138816
(2000)]
There is taking when the expropriator enters
private property not only for a momentary
period but for a more permanent duration for
the purpose of devoting the property to a public
use in such a manner as to oust the owner and
deprive him of all the beneficial enjoyment
thereof. [Republic v. Sarabia, G.R. No. 157847
(2005)]
Public use means public usefulness, utility, or
advantage, or what is productive of the general
benefit, so that any appropriation of private
property by the State under its right of eminent
domain, for purposes of great advantage to the
community, is a taking for public use. [Reyes v.
National Housing Authority, G.R. No.147511
(2003)]
Just compensation is the full and fair
equivalent of the property taken from its owner
by the expropriator. It is considered to be a sum
equivalent to the market value of the property,
which is defined as the price fixed by the seller
in the open market in the usual and ordinary
course of legal action and competition. [2
Riano 284-285, 2016 Bantam Ed.]
When market value should be fixed:
a. If plaintiff takes possession before the
institution of proceedings: value is fixed as
of time of taking; or
b. If taking coincides with or is subsequent to
the commencement of proceedings: value
is fixed as of date of filing of the
complaint.
a. Matters to Allege in Complaint
for Expropriation
The verified complaint shall
a. State with certainty the right and purpose
of expropriation,
b. Describe the real or personal property
sought to be expropriated, and
c. Join as defendants all persons owning or
claiming to own, or occupying, any part
thereof or interest therein, showing, so far
as practicable, the separate interest of
each defendant.
Note: If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals, or if the title is otherwise obscure or
doubtful so that the plaintiff cannot with
accuracy or certainty specify who are the real
owners, averment to that effect shall be made
in the complaint. [Sec. 1, Rule 67]
b. Two Stages in Every Action for
Expropriation
The first phase determines the propriety of the
action. The second phase determines the
compensation to be paid to the landowner.
[National Power Corporation v. Posada, G.R.
No. 191945 (2015)]
First stage: Propriety of expropriation
a. This stage involves the determination of
the authority of the plaintiff to exercise
the power of eminent domain and the
propriety of its exercise in the context of the
facts involved in the suit
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b. Ends with an order of dismissal or order
of condemnation declaring that the
plaintiff has a lawful right to take the
property sought to be condemned, for the
public use or purpose described in the
complaint, upon the payment of just
compensation to be determined as of the
date of the filing of the complaint.
1. An order of dismissal, would be a final
one, since it finally disposes of the
action and leaves nothing more to be
done by the court on the merits.
2. So, too, would an order of
condemnation be a final one, for
thereafter, as the ROC expressly
states, in the proceedings before the
Trial Court, "no objection to the
exercise of the right of condemnation
(or the propriety thereof) shall be filed
or heard.” [National Power Corporation
v. Posada, G.R. No. 191945 (2015)]
Note: A final order sustaining the right to
expropriate the property may be appealed by
any party aggrieved thereby. Such appeal,
however, shall not prevent the court from
determining the just compensation to be paid.
[Sec. 4, Rule 67]
Second Stage: Just compensation
a. This stage involves the determination by
the Court of "the just compensation for the
property sought to be taken” with the
assistance of not more than three (3)
commissioners.
b. The order fixing the just compensation on
the basis of the evidence before, and
findings of, the commissioners would be
final, too. It would finally dispose of the
second stage of the suit, and leave nothing
more to be done by the Court regarding the
issue. [National Power Corporation v.
Posada, G.R. No. 191945 (2015)]
REMEDIAL LAW
c. When Plaintiff Can Immediately
Enter Into Possession of Real
Property
The plaintiff shall have the right to take or
enter upon possession of the real property
upon:
a. Filing of complaint or at any time thereafter,
b. After due notice to defendant, and
c. Making a preliminary deposit [Sec. 2, Rule
67]
Preliminary deposit
If real property:
An amount equivalent to the
assessed value of the property
for purposes of taxation.
Value
Where
to
deposit
If personal property:
Its value shall be provisionally
ascertained and the amount to
be deposited shall be promptly
fixed by the court.
With the authorized government
depository to be held by such
bank subject to the orders of the
court.
General rule: In money.
Exception: In lieu of money, the
court authorizes the deposit of a
Form of
certificate of deposit of a
deposit
government
bank
of
the
Republic of the Philippines
payable on demand to the
authorized
government
depository.
The court shall order the sheriff
or other proper officer to
After
forthwith place the plaintiff in
deposit
possession of the property
is made
involved and promptly submit a
report thereof to the court with
service of copies to the parties.
[Sec. 2, Rule 67]
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d. New System of Immediate
Payment
of
Initial
Just
Compensation
R.A. 10752 (For national government
infrastructure projects)
Republic Act 10752, also known as “The Right
of Way Act” ensures that owners of real
property acquired for national government
infrastructure projects are promptly paid just
compensation for the expeditious acquisition of
the required right-of-way for the projects.
Upon the filing of the complaint or at any time
thereafter, and after due notice to the
defendant, the implementing agency shall
immediately deposit to the court in favor of
the owner the amount equivalent to the sum of
a. 100% of the value of the land based on the
current relevant zonal valuation of the BIR
issued not more than 3 years prior to the
filing of the expropriation complaint
b. The replacement cost at current market
value of the improvements and structures
as determined by
1. The implementing agency
2. A government financial institution with
adequate experience in property
appraisal, and
3. An independent property appraiser
accredited by the BSP.
c. The current market value of crops and
trees located within the property as
determined by a government financial
institution or an independent property
appraiser to be selected as indicated in
Sec. 5(a)
Upon compliance with the guidelines above
mentioned, the court shall immediately issue
to the implementing agency an order to take
possession of the property and start the
implementation of the project.
[Sec. 6, R.A. 10752]
For non-government infrastructure projects
If expropriation is engaged in by the national
government for purposes other than national
infrastructure projects, the assessed value
standard and deposit mode prescribed in Rule
REMEDIAL LAW
67 continues to apply. In such a case, the
government is required only to make an initial
deposit with an authorized government
depository. [2 Riano 297-298, 2016 Bantam
Ed.]
e. Defenses and Objections
With
objection to
No objection to taking
taking
What to file and serve
Notice of appearance and
Answer
a manifestation
Period to file
Within the time stated in the summons
Contents
a. Specifically
designate
or identify
the
property in
which he
claims to
have an
a. Manifestation to the
interest,
effect that he has no b. State the
objection or defense
nature and
b. Specifically
extent of
designating/identifying
the interest
the property in which
claimed,
he claims to be
and
interested
c. Adduce all
his
objections
and
defenses
to the
taking of
his
property
Prohibited
Counterclaim,
cross- claim or
third-party
complaint
in
the answer or
any
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g. Ascertainment
Compensation
subsequent
pleading
REMEDIAL LAW
of
Just
[Sec. 3, Rule 67]
Effect of failure to file answer
The failure to file an answer does not produce
all the disastrous consequences of default in
ordinary civil actions, because the defendant
may still present evidence as to just
compensation. [Robern Development Corp. v.
Quitain, G.R. No. 135042 (1999)]
f. Order of Expropriation
When issued
a. If the objections to and the defenses
against the right of the plaintiff to
expropriate the property are overruled, or
b. When no party appears to defend as
required by this Rule.
[Sec. 3, Rule 67]
Contents of order
The court may issue an order of expropriation
declaring that:
a. The plaintiff has a lawful right to take the
property sought to be expropriated,
b. For the public use or purpose described in
the complaint,
c. Upon the payment of just compensation to
be determined as of the date of the taking
of the property or the filing of the complaint,
whichever came first. [Sec. 4, Rule 67]
Remedy of defendant
A final order sustaining the right to expropriate
the property may be appealed by any party
aggrieved thereby.
• The order of condemnation is final. Hence,
it is appealable. [Heirs of Alberto v. City of
Mandaluyong, G.R. No. 135087 (2000)]
Note: Such appeal, however, shall not prevent
the court from determining the just
compensation to be paid.
[Sec. 4, Rule 67]
Upon the rendition of the order of expropriation,
the court shall appoint not more than 3
competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken. [Sec. 5, Rule 67]
Order of appointment
The order of appointment shall:
a. Designate the time and place of the first
session of the hearing to be held by the
commissioners,
b. Specify the time within which the
commissioners' report shall be submitted
to the court,
c. Be served on the parties. [Sec. 5, Rule 67]
h. Appointment
of
Commissioners;
Commissioner’s Report; Court
Action Upon Commissioner's
Report
Qualifications
a. Competent; and
b. Disinterested. [Sec. 5, Rule 67]
Objection to the appointment
Objections to the appointment of any of the
commissioners shall be:
a. Filed with the court within 10 days from
service, and
b. Resolved within 30 days after all the
commissioners shall have received copies
of the objections. [Sec. 5, Rule 67]
Duties of commissioners
The commissioners shall:
a. After due notice to the parties to attend,
view and examine the property sought to
be expropriated and its surroundings, and
may measure the same, after which either
party may, by himself or counsel, argue the
case.
• Unless the parties consent to the
contrary.
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b. Assess the consequential damages to
the property not taken and deduct from
such
consequential
damages
the
consequential benefits to be derived by the
owner from the public use or purpose of the
property taken, the operation of its
franchise by the corporation or the carrying
on of the business of the corporation or
person taking the property.
• In no case shall the consequential
benefits
assessed
exceed
the
consequential damages assessed, or
the owner be deprived of the actual
value of his property so taken.
[Sec. 6, Rule 67]
Action by the court
The court may:
1. Order the commissioners to report when
any particular portion of the real estate
shall have been passed upon by them,
and
2. Render judgment upon such partial report,
and
3. Direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and
may from time to time so deal with such
property. [Sec. 7, Rule 67]
Commissioners’ report
The commissioners shall make a full and
accurate report to the court of all their
proceedings.
• Except as otherwise expressly ordered by
the court, such reports shall be filed within
60 days from the date the commissioners
were notified of their appointment.
• Time for submission of the report may be
extended at the discretion of the court.
• Upon the filing the report, the COC shall
serve copies on all interested parties, with
notice that they are allowed 10 days within
which to file objections to the findings of the
report, if they so desire.
Note: The commissioners’ proceedings shall
not be effectual until the court shall have
accepted their report and rendered judgment in
accordance with their recommendations. [Sec.
7, Rule 67]
REMEDIAL LAW
Action upon commissioner’s report
a. Upon the expiration of the period of 10 days
for the filing of objections to the
commissioner’s report, or
b. Before the expiration of such period but
after all the interested parties have filed
their objections to the report or their
statement of agreement,
The court may:
1. After hearing, accept the report and render
judgment in accordance therewith, or
2. For cause shown, recommit the same to
the commissioners for further report of
facts, or
3. Set aside the report and appoint new
commissioners, or
4. Accept the report in part and reject it in part.
The court may make such order or render such
judgment as shall secure to the
1. Plaintiff - the property essential to the
exercise of his right of expropriation, and to
the
2. Defendant - just compensation for the
property so taken.
[Sec. 8, Rule 67]
The appointment of commissioners to
ascertain just compensation for the property
sought to be taken is a mandatory
requirement in expropriation cases. [2 Riano
301, 2016 Bantam Ed.]
i. Rights
of
Plaintiff
Judgment and Payment
Upon
The plaintiff shall have the right to:
a. Enter upon the property expropriated and
to appropriate it for the public use or
purpose defined in the judgment, or
b. Retain it should he have taken immediate
possession thereof under the provisions of
Sec. 2, Rule 67.
[Sec. 10, Rule 67]
Note: Such rights of the plaintiff are not delayed
by an appeal from the judgment. [Sec. 11, Rule
67]
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When the rights arise
a. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from
the taking of the possession of the
property, or
b. After tender to him of the amount so fixed
and payment of the costs. [Sec. 10, Rule
67]
When title to property vests
a. Personal property - upon payment of just
compensation. [Sec. 10, Rule 67]
b. Real property - Upon
1. Payment of just compensation; and
2. Registration of property (by recording
of the judgment in the registry of deeds
where the property is situated)
[Sec. 13, Rule 67]
When payment is to the court
If the ownership as to the property is
uncertain or there are conflicting claims, the
court may order that the payment be made to
the court for the benefit of the person adjudged
to be entitled thereto. This is to enable the
plaintiff to enter the property or retain it. [Sec.
9, Rule 67]
10. FORECLOSURE OF REAL
ESTATE MORTGAGE
If the defendant and his counsel absent
themselves from the court, or decline to
receive the amount tendered, the same shall
be ordered to be deposited in court and such
deposit shall have the same effect as actual
payment thereof to the defendant or the person
ultimately adjudged entitled thereto. [Sec. 10,
Rule 67]
Effect of non-payment of just compensation
Non-payment of just compensation does not
entitle the private landowner to recover
possession of the expropriated lots. However,
in cases where the government failed to pay
just compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall have
the right to recover possession of their
property. [Yujuico v. Atienza, G.R. No. 164282
(2005)]
Foreclosure of mortgage is the process by
which a mortgagee acquires an absolute title to
the property of which he had previously been
only the conditional owner, or upon which he
had previously a mere lien or encumbrance.
[Benedicto v. Yulo, G.R. No. L-8106 (1913)]
Foreclosure is the necessary consequence of
non-payment of mortgage indebtedness. The
mortgage can be foreclosed only when:
1. The debt remains unpaid at the time it is
due [Producers Bank v. CA, G.R. No.
111584 (2001)], or
2. In case of default in the payment of
obligation [PNB v. CA, G.R. No. 126908
(2003)]
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein. [1 Regalado 852, 2010 Ed.]
a. Kinds of Foreclosure
i. Judicial Foreclosure
j. Effect of Recording Judgment
Contents of the judgment
The judgment rendered shall state definitely:
a. By an adequate description, the particular
property or interest therein expropriated,
and
b. The nature of the public use or purpose for
which it is expropriated.
[Sec. 13, Rule 67]
Judicial foreclosure is a mode of foreclosure
that is done pursuant to Rule 68 of the Rules of
Court. [2 Riano 313, 2016 Bantam Ed.]
ii. Extrajudicial Foreclosure
Extrajudicial foreclosure is a mode of
foreclosure that is done pursuant to Act 3135,
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as amended by Act 4118. [2 Riano 313, 2016
Bantam Ed.]
Judicial foreclosure vs. Extrajudicial
foreclosure
Judicial
Extrajudicial
foreclosure
foreclosure
Requires
court No court intervention
intervention
necessary
Right of redemption
exists; mortgagor has
There is only an a right to redeem the
equity
of property within one
redemption. [Huerta year from registration
Alba Resort, Inc. v. of the deed of sale.
CA,
G.R.
No. [Huerta Alba Resort,
128567 (2000)]
Inc. v. CA, G.R. No.
128567 (2000), citing
Act 3135]
Governed by Rule Governed by Act
68
3135
No
deficiency
judgment
because
There could be a there is no judicial
deficiency
proceeding in the
judgment. [Sec. 6, foreclosure of the
Rule 68]
mortgage itself. [1
Regalado 859, 2010
Ed.]
Deficiency judgment Recovery
of
shall be rendered, deficiency is through
on
motion.
[1 an
independent
Regalado 859, 2010 action. [1 Regalado
Ed.]
859, 2010 Ed.]
Exception: Juridical
Exception:
persons shall have
Mortgagor
may the right to redeem
exercise right of until, but not after, the
redemption within registration of the
one year after the certificate
of
sale, when the loan foreclosure sale with
or credit
the Register of Deeds
accommodation is which in no case shall
granted by a bank be more than 3
[Sec. 47, R.A. 8791] months
after
foreclosure,
REMEDIAL LAW
whichever is earlier.
[Sec. 47, R.A. 8791]
b. Need for Special Power of
Attorney
Extrajudicial foreclosure is the mode to be used
if there is a special power inserted in the real
estate mortgage contract allowing an
extrajudicial foreclosure sale. Where there is
no such special power, the foreclosure shall be
done judicially following Rule 68. [2 Riano 313,
2016 Bantam Ed.]
c. Authority
Judicially
to
Foreclose
Nature of the action
An action to foreclose a real estate mortgage
may be rightly considered as an action
involving interest in real property, hence a real
action. [2 Riano 312-313, 2016 Bantam Ed.]
Jurisdiction
Under BP 129, where the action is one
involving title to, or possession of, real
property, the determination of jurisdiction shall
be made by inquiring into the assessed value
of the property. From this point of view,
exclusive original jurisdiction would fall
either in the MTC or the RTC depending on
the assessed value. [2 Riano 312-313, 2016
Bantam Ed.]
d. Procedure
Form
The complaint shall set forth:
a. The date and due execution of the
mortgage;
b. Its assignments, if any;
c. The names and residences of the
mortgagor and the mortgagee;
d. A description of the mortgaged property;
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e. A statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage;
f. The amount claimed to be unpaid; and
g. The names and residences of all persons
having or claiming an interest in the
property subordinate in right to the holder
of the mortgage.
• Such persons shall be made
defendants in the action.
[Sec. 1, Rule 68]
i. Where to File
Venue
A foreclosure action must be brought in the
RTC of the province where the land or any
part thereof is situated. If a mortgage
contract covers several distinct parcels of land
situated in different provinces, the action may
be brought in the RTC of any of the provinces
and the judgment will be enforceable against
any of the parcels of land involved. [Monte de
Piedad v. Rodrigo, G.R. No. L-42928 (1936)]
ii. Where to Sell
In Judicial Foreclosure
When the defendant fails to pay the amount of
the judgement ascertaining the amount due to
the plaintiff upon the mortgage debt, the court,
upon motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
[Sec. 3, Rule 68]
In Extrajudicial Foreclosure
Said sale cannot be made legally outside of the
province in which the property sold is situated;
and in case the place within said province in
which the sale is to be made is subject to
stipulation, such sale shall be made in said
place or in the municipal building of the
municipality in which the property or part
thereof is situated. [Sec. 2, Act 3135]
iii. Posting Requirement
Judicial Foreclosure Requirement
Before the sale of real property, it is required
that there be posting for 20 days in 3 public
places, preferably in conspicuous areas of the
municipal or city hall, post office, and public
market in the municipality or city where the sale
is to take place. Such notice must particularly
describe the property and state where the
property is to be sold. [Sec 15(c), Rule 39]
Extrajudicial Foreclosure Requirement
Notice shall be given by posting notices of the
sale for not less than 20 days in at least 3
public places of the municipality or city where
the property is situated. [Sec. 3, Act 3135]
Effect of failure to Post Notice
The failure to post a notice is not per se a
ground for invalidating the sale provided that
the notice thereof is duly published in a
newspaper of general circulation. [DBP v.
Aguirre, G.R. No. 144877 (2001)]
iv. Publication Requirement
Under Rule 39, the notice of sale shall specify
the place, date, and exact time of the sale. The
place of the sale may be agreed upon by the
parties.
In the absence of such agreement, the sale of
real property shall be held in the office of the
clerk of court in the RTC or MTC which
issued the writ, or which was designated by
the appellate court. [Sec. 15, Rule 39]
1. Sufficiency
Publication
of
Newspaper
Judicial Foreclosure
If the assessed value of the property exceeds
P50,000, one must also publish a copy of the
notice once a week for 2 consecutive weeks in
one newspaper having general circulation in
the province or city. [Sec. 15(c), Rule 39]
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Extrajudicial Foreclosure
If such property is worth more than P400, such
notice shall also be published once a week for
at least three consecutive weeks in a
newspaper of general circulation in the
municipality or city. [Sec. 3, Act 3135]
2. Need for Republication in Case
of Postponement
During extrajudicial foreclosure proceedings
under Act 3135, republication as well as
reposting of the notice of sale is required if the
foreclosure does not proceed on the date
originally intended. The lack of republication of
the notice of the foreclosure sale renders it
void. [Metrobank v. Nikko, G.R. No. 178479,
(2009)]
3. Personal
Notice
to
The
Mortgagor When and When Not
Needed
Judicial foreclosure
The mortgagor is notified through the service of
summons.
[Sec. 1, Rule 68]
Extrajudicial foreclosure
General Rule: Personal notice to the
mortgagor
in
extrajudicial
foreclosure
proceedings is not necessary, and posting
and publication will suffice.
Exception: When the parties stipulate that
personal notice is additionally required to be
given the mortgagor. Failure to abide by the
general rule, or its exception, renders the
foreclosure proceedings null and void.
[Paradigm v. BPI, G.R. No. 191174 (2017)]
REMEDIAL LAW
e. Possession by Purchaser of
Foreclosed Property
Judicial Foreclosure
General Rule: Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption, the purchaser at the
auction sale or last redemptioner, if any, shall
be entitled to the possession of the property.
• Order of confirmation; After the
foreclosure sale, the mortgagee should file
a motion for the confirmation of the sale.
Such requires notice and hearing. During
the hearing, the mortgagor will be allowed
to show why the sale should not be
confirmed. If, after such, the court finds
ground to confirm, it shall issue the order of
confirmation. [2 Riano 318-319, 2016
Bantam Ed.]
• Such order removes from the parties the
right to the property, and grants such right
to the purchaser, subject to redemption. [2
Riano 319, 2016 Bantam Ed.]
• Such order of confirmation is appealable.
[2 Riano 320, 2016 Bantam Ed.]
Exception: When a third party is actually
holding the same adversely to the judgement
obligor. In such a case, the purchaser or the
last redemptioner may secure a writ of
possession, upon motion, from the court.
[Sec. 3, Rule 68]
Extrajudicial Foreclosure
The purchaser may petition the RTC of the
province or place where the property or any
part thereof is situated, to give him
possession thereof during the redemption
period, furnishing bond in an amount
equivalent to the use of the property for a
period of twelve months, to indemnify the
debtor in case it be shown that the sale was
made without violating the mortgage or without
complying with the requirements of this Act.
[Sec. 7, Act 3135]
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f. Remedy
of
Debtor
Foreclosure is Not Proper
if
Equity of
redemption
Judicial Foreclosure
The debtor-mortgagor is allowed the
opportunity to show why the sale should not be
confirmed during the hearing on the motion
of confirmation of the sale. [2 Riano 318,
2016 Bantam Ed.]
A failure to give notice of the hearing for motion
of confirmation is good cause for setting aside
the sale. [Grimalt v. Velasquez, 36 Phil 936
(1917)]
Extrajudicial Foreclosure
The debtor may, in the proceedings in which
possession was requested, but not later than
30 days after the purchaser was given
possession, petition that the sale be set aside
and the writ of possession cancelled,
specifying the damages suffered by him,
because the mortgage was not violated or the
sale was not made in accordance with the
provisions hereof. [Sec. 8, Act 3135]
g. Redemption
There is no right of redemption in a judicial
foreclosure under Rule 68. This right exists
only in extrajudicial foreclosure where there
is always a right of redemption within one year
from the date of sale, but interpreted by the
court to mean one year from the registration of
the sale.
In judicial foreclosure, there is only an equity
of redemption which can be exercised prior to
the order of confirmation of the foreclosure
sale. This means that after the foreclosure sale
but before its confirmation, the mortgagor may
exercise his right to pay the proceeds of the
sale and prevent the confirmation of the sale.
• Exception: There is a right of redemption
in a judicial foreclosure if the foreclosure is
in favor of banks, as provided for in the
General Banking Law. [Sec. 47]
redemption
vs.
Right
of
Equity of redemption
Right of
redemption
Right of defendant
mortgagor
to
extinguish
the
mortgage and retain
ownership
of
the
property by paying the
secured debt within the
90 to 120-day period
after entry of judgment
or even after the
foreclosure sale but
prior to its confirmation
Right of the debtor,
his successor in
interest, or any
judicial creditor of
said debtor or any
person having a
lien on the property
subsequent to the
mortgage.
Governed by Rule 68
Governed by Secs.
29-31, Rule 39
Note: What Secs. 2-3, Rule 68 provide for is
the mortgagor’s equity of redemption. This may
be exercised by him even beyond the period to
pay the judgment obligation (i.e. 90-120 days)
and even after the foreclosure sale itself,
provided it be before the order of the
confirmation of sale. [Rosales v. Alfonso, G.R.
No. 137792 (2003)]
i. Who May Redeem
Judicial Foreclosure
The equity of redemption is the mortgagor’s
equity to be able to extinguish the mortgage
and retain ownership of the property. [2 Riano
316, 2016 edition]
Extrajudicial Foreclosure
The debtor, his successors in interest or any
judicial creditor or judgment creditor of said
debtor, or any person having a lien on the
property subsequent to the mortgage or deed
of trust under which the property is sold, may
redeem the same. [Sec. 6, Act 3135]
Note: The period for redemption in extrajudicial
foreclosure is shortened when the mortgagor is
a juridical person. The period of redemption is
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“until but not after” the registration of certificate
of sale with the Register of Deeds, “which in no
case shall be more than 3 months after
foreclosure, whichever is earlier.” [2 Riano 317,
2016 Bantam Ed.]
ii. Amount of Redemption Price
In equity of redemption, the price that needs
to be paid in order to retain ownership of the
property and extinguish the mortgage would be
the debt amount. [2 Riano 317, 2016 Bantam
Ed.]
With respect to the right of redemption, the
amount of the purchase price differs depending
on whether the entity redeeming is a bank or
not.
1. Bank redemptioner - The redemption
price shall be:
a. The amount due under the mortgage
deed,
b. Interest rate specified in the mortgage,
and
c. Expenses incurred by the bank from
the sale of the property.
2. Non-bank redemptioner - The
redemption price shall be
a. Full amount paid by the purchaser,
b. 1% interest per month on the
purchase price, up to the time of
redemption,
c. Taxes assessed that purchaser paid,
and
d. Interest of 1% on the taxes assessed.
[De Leon 557, Comments and Cases on Credit
Transactions, 2016 Ed.]
foreclosure sale but
prior to confirmation.
iv. Effect of Pendency of Action for
Annulment of Sale
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat the
right of the purchaser to a writ of possession to
which the purchaser becomes entitled to as a
matter of right.
Note: An injunction to prohibit the enforcement
of the writ is entirely out of place. [Carpo v.
Chua, 471 SCRA 471 (2005)]
h. Writ of Possession
The writ of possession is a means of
recognizing and enforcing the rights of the
purchaser, since the confirmation of the
foreclosure sale operates to divest all parties to
the action of their rights in the property and
vests them in the purchaser. [2 Riano 320,
2016 Bantam Ed.]
i. Ministerial Duty of the Court
The purchaser shall be entitled to a writ of
possession upon:
a. Finality of the order of confirmation, or
b. Expiration of the period for redemption.
Such writ shall be issued upon motion. Hence
the purchaser or last redemptioner must file a
motion for the issuance of a writ of possession.
[2 Riano 320, 2016 Bantam Ed.]
ii. Enforcement Against Third Parties
iii. Period for Redemption
Equity of redemption
Period is 90-120 days
after entry of judgment
or
even
after
Right of
redemption
Period is 1 year
from
date
of
registration
of
certificate of sale.
The obligation of a court to issue a writ of
possession ceases to be ministerial when a
third-party in possession of the property claims
a right that is adverse to that of the debtormortgagor.
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Remedy
Where such third party claim and possession
exist, the trial court should conduct a hearing to
determine the nature of the adverse
possession. [Barican v. IAC, G.R. No. 79906,
(1988)] Such is the case because a third party
cannot be dispossessed on the strength of a
mere possessory writ. [De Leon 589,
Comments and Cases on Credit Transactions,
2016 Ed.]
iii. Pendency of action for annulment
of sale
A pending suit for annulment of the mortgage
or annulment of the foreclosure proceedings
does not defeat the right of the purchaser to
a writ of possession to which the purchaser
is entitled to as a matter of right. An injunction
to prohibit the issuance or enforcement of the
writ is entirely out of place. [Carpo v. Chua,
G.R. No. 150773, (2005)]
agreement and suitable instruments of
conveyance without recourse to an action.
[Sec. 12, Rule 69]
Nature
An action for partition and accounting under
Rule 69 is in the nature of an action quasi in
rem. Such action is essentially for the purpose
of affecting the defendant’s interest in a
specific property and not to render a judgment
against him. [Valmonte v. CA, G.R. No. 108538
(1996)]
When partition can be done
General rule: Prescription does not run in
favor of a co-owner or co-heirs as long as there
is a recognition of the co-ownership, expressly
or impliedly. [2 Riano 416, 2012 Bantam Ed.]
Exception: If a co-owner asserts adverse title
to the property, in which case, the prescription
period runs from such time of assertion of the
adverse title. [De Castro v. Echarri, G.R. No.
5609 (1911)]
i. Annulment of Sale
See discussion on 6. Remedy of debtor if
foreclosure not proper.
11.
PARTITION
Definition
Partition is the separation, division and
assignment of a thing held in common among
those to whom it may belong. Every act which
is intended to put an end to indivision among
co-heirs and legatees or devisees is deemed to
be a partition. [Marcos v. Heirs of Isidro Bangi,
G.R. No. 185745 (2014)]
Partition may be:
1. Judicial – Procedure is Rule 69
2. Extrajudicial – No court intervention is
required
Nothing in Rule 69 contained shall be
construed so as to restrict or prevent persons
holding real estate jointly or in common from
making an amicable partition thereof by
REMEDIAL LAW
a. Who May File Complaint; Who
Should Be Made Defendants
Who may file
A person having the right to compel the
partition of real estate. [Sec. 1, Rule 69]
Who should be made defendants
All other persons interested in the property.
[Sec. 1, Rule 69]
Jurisdiction
The courts with jurisdiction over the action for
partition are the MTC or the RTC depending on
the value of the property.
If the value of the property is below such
threshold, then the MTC has jurisdiction. If the
value is greater, then the RTC has jurisdiction.
b. Matters to Allege in
Complaint for Partition
the
a. The nature and extent of his title;
b. Adequate description of the real estate of
which partition is demanded; and
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c. Join as defendants all other persons
interested in the property.
[Sec. 1, Rule 69]
d. Demand for accounting of the rents, profits,
and other income from the property to
which he may be entitled to as his share
[Sec. 8, Rule 69] Since these cannot be
demanded in another action (because they
are part of the cause of action for partition),
they are barred if not set up. [2 Riano 420,
2012 Bantam Ed.]
c. Two Stages in Every Action for
Partition
First stage - Determination of the propriety
of partition
This involves a determination of whether the
subject property is owned in common and
whether all the co-owners are made parties in
the case. [Lacbayan v. Samoy, G.R. No.
165427 (2011)]
d. Order of Partition and Partition
by Agreement
Order of partition
If after the trial the court finds that the plaintiff
has the right thereto, it shall order the partition
of the real estate among all the parties in
interest. [Sec. 2, Rule 69]
Partition by agreement
a. The parties may, if they are able to agree,
make the partition among themselves by
proper instruments of conveyance,
b. The court shall confirm the partition so
agreed upon by all the parties, and
c. Such partition, together with the order of
the court confirming the same, shall be
recorded in the registry of deeds of the
place in which the property is situated.
[Sec. 2, Rule 69]
e. Partition by Commissioners;
Appointment
of
Commissioners,
Commissioner’s Report; Court
Action Upon Commissioner’s
Report
The order may also require an accounting of
rents and profits recovered by the defendant.
[Miranda v. CA, G.R. No. L-33007 (1976)]
Remedy
A final order decreeing partition and accounting
may be appealed by any party aggrieved
thereby. [Sec. 2, Rule 69]
If not appealed, then the parties may partition
the common property in the way they want. If
they cannot agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be executed.
[De Mesa v. CA, G.R. No.109387 (1994)]
Second stage - Actual partitioning of the
subject property
There can be no partition again because there
is no more common property. [Noceda v. CA,
G.R. No. 119730 (1999)]
The action for partition is subject to multiple
appeals and would require a record on
appeal. [Roman Catholic Archbishop of Manila
v. CA, G.R. No. 77425 (1991)]
REMEDIAL LAW
When proper
When the parties are unable to agree upon the
partition. [Sec. 3, Rule 69]
Action of the court
a. The court shall appoint not more than 3
competent and disinterested persons as
commissioners to make the partition,
b. Commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court shall
direct. [Sec. 3, Rule 69]
Oath of commissioners
Before making such a partition, the
commissioners shall take and subscribe an
oath that they will faithfully perform their duties
as commissioners, which oath shall be filed in
court with the other proceedings in the case.
[Sec. 4, Rule 69]
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Duties of commissioners
a. View and examine the real estate, after due
notice to the parties to attend at such view
and examination,
b. Hear the parties as to their preference in
the portion of the property to be set apart to
them and the comparative value thereof,
and
c. Set apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof.
[Sec. 4, Rule 69]
Note:
The
provision
authorizes
the
commissioners merely to make or effect the
partition. It does not grant them the authority to
adjudicate on questions of title or ownership. [1
Riano 424, 2012 Bantam Ed.]
Assignment of real estate to one party
General rule: When it is made to appear to the
commissioners that the real estate, or a portion
thereof, cannot be divided without prejudice to
the interests of the parties, the court may order
it assigned to one of the parties willing to take
the same, provided he pays to the other parties
such amounts as the commissioners deem
equitable.
Exception: If one of the interested parties asks
that the property be sold instead of being so
assigned, in which case the court shall order
the commissioners to sell the real estate at
public sale under such conditions and within
such time as the court may determine.
[Sec. 5, Rule 69]
Commissioner’s report
a. The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the
parties, or the sale of the same.
b. Upon the filing of such a report, the COC
shall serve copies thereof on all the
interested parties with notice that they are
allowed 10 days within which to file
objections to the findings of the report, if
they so desire.
REMEDIAL LAW
Note: No proceeding had before or conducted
by the commissioners shall pass the title to the
property or bind the parties until the court shall
have accepted the report of the commissioners
and rendered judgment thereon.
[Sec. 6, Rule 69]
Hearing on the report
a. Upon the expiration of the period of 10 days
to file objections, or
b. Even before the expiration of such period
but after the interested parties have filed
their objections to the report or their
statement of agreement therewith, the
court may
1. Upon hearing, accept the report and
render judgment in accordance
therewith, or,
2. For cause shown, recommit the same
to the commissioners for further report
of facts, or
3. Set aside the report and appoint new
commissioners, or
4. Accept the report in part and reject it in
part.
The court may make such order and render
such judgment as shall effectuate a fair and just
partition of the real estate, or of its value, if
assigned or sold as above provided, between
the several owners thereof.
[Sec. 7, Rule 69]
f. Judgment and Its Effects
Contents of
Effects of judgment
judgment
If actual partition is properly made
Judgment shall state
definitely, by metes
Judgment shall vest
and bounds and
in each party to the
adequate
action in severalty
description,
the
the portion of the real
particular portion of
estate assigned to
the
real
estate
him
assigned to each
party
If the whole property is assigned to one of
the parties after payment
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Judgment shall vest
in the party making
the payment the
whole of the real
estate free from any
interest on the part of
the other parties to
the action
If the property is sold and the sale
confirmed by the court
Judgment shall vest
Judgment shall state
the real estate in the
the name of the
purchaser
or
purchaser
or
purchasers making
purchasers and a
the
payment
or
definite description
payments, free from
of the parcels of real
the claims of any of
estate sold to each
the parties to the
purchaser
action
[Sec. 11, Rule 69]
Judgment shall state
the fact of such
payment and of the
assignment of the
real estate to the
party making the
payment
A certified copy of the judgment shall in either
case be recorded in the registry of deeds of
the place in which the real estate is situated,
and the expenses of such recording shall be
taxed as part of the costs of the action. [Sec.
11, Rule 69]
g. Partition of Personal Property
The provisions of Rule 69 shall apply to
partitions of estates composed of personal
property, or of both real and personal property,
in so far as the same may be applicable [Sec.
13, Rule 69]
h. Prescription of Action
General rule:
The right of action to demand partition does
not prescribe. [De Castro v. Echarri, G.R. No.
5609 (1911)]
Exception:
Where one of the interested parties openly and
adversely occupies the property without
recognizing the co-ownership [Cordova v.
Cordova, G.R. No. L-9936 (1958)]
REMEDIAL LAW
Note: If a co-owner repudiates the coownership and makes known such repudiation
to the other co- owners, then partition is no
longer a proper remedy of the aggrieved coowner. He must file an accion reivindicatoria,
which is prescriptible. [Roque v. IAC, G.R. No.
75886 (1988)]
i. When Partition is Not Allowed
The following instances are cases when a coowner cannot demand partition, to wit:
a. There is an agreement among the coowners to keep the property undivided for
a certain period of time not exceeding 10
years. The term may however be extended
by a new agreement. [Art. 494, Civil Code]
b. When partition is prohibited by the donor or
testator for a period not exceeding 20
years. [Art. 494, Civil Code]
c. When a partition is prohibited by law. [Art
494, Civil Code]
d. When the property is not subject to a
physical division and to do so would render
it unserviceable for the use for which it is
intended. [Art. 495, Civil Code]
e. When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. [Art.
1084, Civil Code]
12. FORCIBLE ENTRY AND
UNLAWFUL DETAINER
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession of property.
[Tubiano v. Razo, G.R. No. 132598 (2000)]
The actions for forcible entry and unlawful
detainer belong to the class of actions known
by the generic name accion interdictal
(ejectment) where the issue is the right of
physical or material possession of the subject
real property independent of any claim of
ownership by the parties involved. [A.
Page 219 of 525
U.P. LAW BOC
CIVIL PROCEDURE
Francisco Realty and Development Corp. v.
CA, G.R. No. 125055 (1988)]
a. Definitions and Distinction
Forcible entry
(detentacion)
Possession of land
by the defendant is
unlawful from the
beginning as he
acquires possession
by force, intimidation,
strategy, threat, or
stealth (FISTS) [Dikit
v. Ycasiano, G.R.
No. L-3621 (1951)]
No previous demand
for the defendant to
vacate the premises
is necessary. [Sec. 2,
Rule 70; Medel v.
Militante, G.R. No.
16096 (1921)]
Plaintiff must prove
that he was in prior
physical possession
of the premises until
he was deprived
thereof by defendant
[Pharma Industries,
Inc. v. Pajarillaga,
G.R. No. 53788
(1980)]
The 1-year period is
generally
counted
from the date of
actual entry on land
[1 Regalado 873,
2010 Ed.]
Unlawful detainer
(desahucio)
Possession
is
initially lawful but it
becomes illegal by
reason
of
the
termination of his
right to possession
of the property under
his contract (express
or implied) with the
plaintiff [Dikit v.
Ycasiano, G.R. No.
L-3621 (1951)]
Demand
is
jurisdictional [Sec. 2,
Rule 70; Medel v.
Militante, G.R. No.
16096 (1921)].
Plaintiff need not
have been in prior
physical possession
[Pharma Industries,
Inc. v. Pajarillaga,
G.R. No. 53788
(1980)]
Period is counted
from the date of last
demand [Sarona v.
Villegas, G.R. No. L22984 (1968)]] or
last letter of demand
[DBP v. Canonoy,
G.R. No. L-29422,
(1970)]
REMEDIAL LAW
In order to constitute force, the act of going to
the property and excluding the lawful
possessor necessary implies the exertion of
force over the property which is all that is
necessary and sufficient to show that the action
is based on Sec. 1, Rule 70. [Bunyi v. Factor,
G.R. No. 172547 (2009)]
b. Distinguish: Forcible Entry,
Unlawful
Detainer,
Accion
Publiciana,
and
Accion
Reivindicatoria
Three (3) kinds of action for recovery of
possession
Accion
interdictal
Summary
action
for
recovery of
physical
possession
where
the
dispossessio
n has not
lasted
for
more
than
one year [1
Regalado
871-872,
2010 Ed.]
Accion
Accion
publiciana reivindicatoria
Plenary
action
for
recovery of
real right of
possession
when
dispossessi
on
has
lasted
for
more than
one year [1
Regalado
872, 2010
Ed.]
An action for
recovery
of
possession
based
on
ownership
[1
Regalado 872,
2010 Ed.]
RTC has jurisdiction if the
value of the property exceeds
P20,000
outside
Metro
Manila or P50,000 within
MTC
has
Metro Manila.
jurisdiction
[Sec. 33(2),
MTC has jurisdiction if value
B.P. 129, as
of property does not exceed
amended]
the above amounts
Page 220 of 525
[Sec. 19 and 33, B.P. 129, as
amended]
U.P. LAW BOC
c. Jurisdiction
in
Publiciana
and
Reivindicatoria
CIVIL PROCEDURE
Accion
Accion
Accion
publiciana
and
accion
reivindicatoria
a. RTC has jurisdiction where the assessed
value of the property exceeds PHP 20,000
or, in Metro Manila, PHP 50,000;
b. MTC has jurisdiction if the assessed value
does not exceed said amounts
[Secs. 19 and 33, B.P. 129, as amended by
R.A. 7691]
Where the basic issue is not possession but
interpretation, enforcement and/or rescission
of the contract, it is no longer an ejectment suit.
[Villena v. Chavez, G.R. No. 148126 (2003)]
Accion interdictal
Exclusive original jurisdiction over forcible
entry and unlawful detainer suits is with the
MTC. [Sec. 33(2), B.P. 129]
d. Who May Institute the Action
and When; Against Whom the
Action May be Maintained
In Forcible Entry
A person deprived of possession of any land or
building by force, intimidation, strategy, threat,
or stealth.
In unlawful detainer
a. Lessor, vendor, vendee, or other person
against whom any land or building is
unlawfully withheld; or
b. His legal representatives or assigns.
[Sec. 1, Rule 70]
Period of filing
Within 1 year after the unlawful deprivation or
withholding of possession. [Sec. 1, Rule 70]
Reckoning points:
a. For forcible entry
General Rule: It is counted from the date of
actual entry on the land. [1 Regalado 873, 2010
Ed.]
REMEDIAL LAW
Exception: In case of stealth or strategy, from
the time plaintiff learned of entry. [Vda. de
Prieto v. Reyes, G.R. No. L-21740 (1965)]
b. For unlawful detainer
It is counted from the date of last demand.
[Sarona v. Villegas, G.R. No. L-22984 (1968)]
Against whom may the action be
maintained
Person or persons unlawfully withholding or
depriving of possession, or any person/s
claiming under them. [Sec. 1, Rule 70]
e. Pleadings Allowed
The only pleadings allowed to be filed are the
a. Complaint
b. Compulsory counterclaim pleaded in the
answer
c. Cross-claim pleaded in the answer, and
d. Answers thereto
[Sec. 4, Rule 70]
Note: Pleadings must be verified. [Sec. 4, Rule
70]
What must be alleged in the complaints
Forcible entry
Unlawful detainer
a. Plaintiff had prior
a. Initially,
physical
possession of
possession of the
property by the
property
defendant was
b. The defendant
by contract
deprived him of
with or by
such possession
tolerance of
by means of
the plaintiff
FISTS [Abad v.
b. Eventually,
Farrales, G.R. No.
such
178635 (2011),
possession
citing Sec. 1, Rule
became illegal
70]
upon notice by
c. That the
plaintiff to
complaint was
defendant of
filed within 1 year
the termination
from
of the latter's
dispossession
right of
[Sec. 1, Rule 70;
possession
Page 221 of 525
U.P. LAW BOC
1 Regalado 533,
2010 Ed.]
Note:
First
two
requirements
are
jurisdictional [Abad v.
Farrales, G.R. No.
178635 (2011)]
CIVIL PROCEDURE
c. Thereafter, the
defendant
remained in
possession of
the property
and deprived
the plaintiff of
the enjoyment
thereof, and
d. Within one
year from the
last demand on
defendant to
vacate the
property, the
plaintiff
instituted the
complaint for
ejectment
[French v. CA, G.R.
No. 220057 (2017)]
Note: Mere failure to pay rent does not ipso
facto make unlawful the tenant’s possession. It
is the demand to vacate and refusal to vacate
which makes unlawful the withholding of
possession. [Canaynay v. Sarmiento, G.R. No.
L-1246 (1947)]
f. Action on the Complaint
Motu proprio dismissal
The court may, from an examination of the
allegations in the complaint and such evidence
as may be attached thereto, dismiss the case
outright on any of the grounds for the
dismissal of a civil action which are apparent
therein [Sec. 5, Rule 70]
Issuance of summons
If no ground for dismissal is found, it shall
forthwith issue summons. [Sec. 5, Rule 70]
Answer
a. Within 10 days from service of summons,
the defendant shall file his answer to the
complaint and serve a copy thereof on the
plaintiff.
REMEDIAL LAW
•
Affirmative and negative defenses not
pleaded therein shall be deemed
waived, except lack of jurisdiction over
the subject matter.
• Cross-claims
and
compulsory
counterclaims not asserted in the
answer shall be considered barred.
b. The answer to counterclaims or crossclaims shall be served and filed within 10
days from service of the answer in which
they are pleaded.
[Sec. 6, Rule 70]
Effect of failure to answer
a. Should the defendant fail to answer the
complaint within the period above
provided, the court, motu proprio or on
motion of the plaintiff, shall render
judgment as may be warranted by the
facts alleged in the complaint and limited to
what is prayed for therein.
• The court may in its discretion reduce
the amount of damages and attorney’s
fees claimed for being excessive or
otherwise unconscionable, without
prejudice to the applicability of Sec.
3(c), Rule 9 if there are two or more
defendants.
[Sec. 7, Rule 70]
Preliminary conference
A preliminary conference shall be held not later
than 30 days after the last answer is filed.
• The provisions of Rule 18 on pre-trial shall
be applicable to the preliminary conference
unless inconsistent with the provisions of
Rule 70
a. The failure of the plaintiff to appear in the
preliminary conference shall be cause for
the dismissal of his complaint.
b. The defendant who appears in the
absence of the plaintiff shall be entitled to
judgment on his counterclaim in
accordance with the next preceding
section.
c. All cross-claims shall be dismissed.
d. If a sole defendant shall fail to appear,
the plaintiff shall likewise be entitled to
judgment in accordance with the next
preceding section.
Page 222 of 525
U.P. LAW BOC
•
CIVIL PROCEDURE
This procedure shall not apply where
one of two or more defendants sued
under a common cause of action who
had pleaded a common defense shall
appear at the preliminary conference.
No postponement of the preliminary
conference shall be granted except for highly
meritorious grounds and without prejudice to
such sanctions as the court in the exercise of
sound discretion may impose on the movant.
[Sec. 8, Rule 70]
Submission of affidavits and position
papers
Within 10 days from receipt of the order
mentioned in the next preceding section, the
parties shall submit:
a. The affidavits of their witnesses,
b. Other evidence on the factual issues
defined in the order, and
c. Position papers setting forth the law and
the facts relied upon by them. [Sec. 10,
Rule 70]
Judgment
The court shall render judgment:
a. Within 30 days after receipt of the affidavits
and position papers, or
b. After the expiration of the period for filing
the same.
However, should the court find it necessary to
clarify certain material facts, it may, during
the said period, issue an order
a. Specifying the matters to be clarified, and
b. Require the parties to submit affidavits or
other evidence on the said matters within
10 days from receipt of said order.
Judgment shall be rendered within 15 days
after the receipt of the last affidavit or the
expiration of the period for filing the same.
[Sec. 11, Rule 70]
g. When Demand is Necessary
Unless otherwise stipulated, such action by the
lessor shall be commenced only after
demand. [Sec. 2, Rule 70]
REMEDIAL LAW
Contents
Demand made upon the lessee to
a. Pay or comply with the conditions of the
lease, and
b. Vacate.
[Sec. 2, Rule 70]
Form
a. By service of written notice of such demand
upon the person found on the premises, or
b. By posting of the written notice on the
premises if no person be found thereon, or
[Sec. 2, Rule 70]
c. Orally. [Jakihaca v. Aquino, G.R. No.
83982 (1990)]
Period to comply with demand
The defendant should comply with the demand
within
a. 15 days in the case of lands, or
b. 5 days in the case of buildings
[Sec. 2, Rule 70]
When demand not required:
a. When parties stipulate that demand shall
not be necessary [Sec. 2, Rule 70]; or
b. When action is predicated on the expiration
of the lease. [Labastida v. CA, G.R. No.
110174 (1998)]
When possession unlawful
It is only when the defendant fails to comply
with the demand within the periods provided
by Sec. 2 that his possession becomes
unlawful. (Quevada v. Garcia, G.R. No. 140798
(2006)
A person who occupies the land of another at
the latter's tolerance or permission, without any
contract between them is necessarily bound by
an implied promise that he will vacate upon
demand, failing which, an action for unlawful
detainer may be instituted against him.
[Dakudao v. Consolacion, G.R. No. L-54753
(1983)]
Note: Demand is not required in forcible entry
suits [Dela Cruz v. CA, G.R. No. 139442
(2006)]
Page 223 of 525
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h. Preliminary
Preliminary
Injunction
CIVIL PROCEDURE
Injunction and
Mandatory
The court may grant preliminary injunction,
in accordance with the provisions of Rule 58, to
prevent the defendant from committing further
acts of dispossession against the plaintiff. [Sec.
15, Rule 70]
Preliminary mandatory injunction
A possessor deprived of his possession
through forcible entry or unlawful detainer may,
within 5 days from the filing of the complaint,
present a motion in the action for forcible entry
or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to
restore him in his possession. The court shall
decide the motion within 30 days from the filing
thereof. [Sec. 15, Rule 70]
When available
a. Within 5 days from the filing of the
complaint [Sec. 15, Rule 70]
b. On appeal to the RTC upon motion of the
plaintiff within 10 days from perfection of
appeal [Sec. 20, Rule 70]
Note: The injunction on appeal is to restore to
plaintiff in possession if the court is satisfied
that:
a. Defendant’s appeal is frivolous or dilatory,
or
b. The appeal of plaintiff is prima facie
meritorious.
[Sec. 20, Rule 70]
MTC can also issue a preliminary mandatory
injunction in an unlawful detainer case. [Day v.
RTC of Zamboanga, G.R. No. 71119 (1990)]
Preliminary preventive injunction
Preliminary preventive injunction is available in
either case. Note that Sec. 15 makes the
provisions of Rule 58 applicable to Rule 70. [1
Regalado 891, 2010 Ed.]
i. Resolving
Ownership
Defense
of
REMEDIAL LAW
When the defendant raises the questions 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. [Sec. 33(2), B.P. 129,
as amended by R.A. 7691]
Refugia guidelines
a. The primal rule is that the principal issue
must be that of possession, and that
ownership is merely ancillary thereto, in
which case the issue of ownership may be
resolved but only for the purpose of
determining the issue of possession.
b. It must sufficiently appear from the
allegations in the complaint that what the
plaintiff really and primarily seeks is the
restoration of possession.
c. The inferior court cannot adjudicate on the
nature
of
ownership
where
the
relationship of lessor and lessee has
been sufficiently established in the
ejectment case, unless it is sufficiently
established that there has been a
subsequent change in or termination of that
relationship between the parties.
• This is because under Sec. 2(b), Rule
131, the tenant is not permitted to deny
the title of his landlord at the time of the
commencement of the relation of
landlord and tenant between them.
d. The rule in forcible entry cases, but not in
those for unlawful detainer, is that a party
who can prove prior possession can
recover such possession even against the
owner himself. Regardless of the actual
condition of the title to the property and
whatever may be the character of his prior
possession, if he has in his favor priority
in time, he has the security that entitles
him to remain on the property until he is
lawfully ejected by a person having a better
right through an accion publiciana or
accion reivindicatoria.
• Corollarily, if prior possession may be
ascertained in some other way, then
the inferior court cannot dwell upon or
intrude into the issue of ownership.
e. Where the question of who has prior
possession hinges on the question of
Page 224 of 525
U.P. LAW BOC
CIVIL PROCEDURE
who the real owner of the disputed
portion is, the inferior court may resolve
the issue of ownership and make a
declaration as to who among the
contending parties is the real owner. In the
same vein, where the resolution of the
issue of possession hinges on a
determination of the validity and
interpretation of the document of title or any
other contract on which the claim of
possession is premised, the inferior court
may likewise pass upon these issues. This
is because, and it must be so understood,
that any such pronouncement made
affecting ownership of the disputed
portion is to be regarded merely as
provisional, hence, does not bar nor
prejudice an action between the same
parties involving title to the land.
[Refugia v. CA, G.R. No. 118284 (1996)]
Judgment for ejectment cannot be enforced
against a co-owner who was not made a party
to the action. [Cruzcosa v. Concepcion, G.R.
No. L-11146 (1957)]
j.
determined by the judgment of the lower
court on or before the 10th day of each
succeeding month or period.
[Sec. 19, Rule 70]
Note: All these requisites must concur.
Judgment of the RTC
The judgment of RTC against the defendant
shall be immediately executory, without
prejudice to further appeal that may be taken
therefrom. [Sec. 21, Rule 70]
Summary procedure
General rule: All actions for forcible entry and
unlawful detainer shall be governed by the
summary procedure of Rule 70, irrespective of
the amount of damages or unpaid rentals
sought to be recovered.
Exceptions:
a. In cases covered by agricultural tenancy
laws; or
b. When the law otherwise expressly
provides.
[Sec. 3, Rule 70]
How to Stay the Immediate
Execution of Judgment
Judgment of MTC
General rule: Judgment of the MTC against
defendant in ejectment cases is immediately
executory upon motion.
Exceptions:
a. An appeal has been perfected and
b. The defendant who seeks to stay execution
files a sufficient supersedeas bond,
approved by the MTC and executed in
favor of the plaintiff to pay the rents,
damages, and costs accruing down to the
time of the judgment appealed from, and
c. During the pendency of the appeal, he
deposits with the appellate court the
amount of rent due from time to time under
the contract, if any, as determined by the
judgment of the MTC. In the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and
occupation of the premises for the
preceding month or period at the rate
REMEDIAL LAW
k. Prohibited
Motions
Pleadings
and
a. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
Sec. 12, Rule 70 (referral for conciliation)
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
l. Interventions
[Sec. 13, Rule 70]
Page 225 of 525
U.P. LAW BOC
13.
CONTEMPT
Definition
Contempt of court is disobedience to the
court by acting in opposition to its authority,
justice, and dignity.
• It signifies not only a willful disregard or
disobedience to the court’s orders but also
conduct tending to bring the authority of the
court and administration of law into
disrepute, or, in some manner, to impede
the due administration of justice. [Siy v.
NLRC, G.R. No. 158971 (2012)]
Nature
The power to declare a person in contempt of
court and in dealing with him accordingly is an
inherent power of the court. It is used as a
means to protect and preserve the dignity of
the court, the solemnity of the proceedings,
and administration of justice. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)]
Generally, a non-party may not be liable for
contempt unless he is guilty of conspiracy with
any of the parties in violating the court’s orders.
[Desa Enterprises Inc. v. SEC, G.R. No. L45430 (1982)]
a. Kinds of Contempt
According to nature
a. Criminal contempt: Conduct directed
against the authority and dignity of the
court or a judge acting judicially.
b. Civil contempt: Failure to do something
ordered to be done by a court or by a judge
for the benefit of the opposing party.
[Lorenzo Shipping v. Distribution Management,
G.R. No. 155849 (2011)]
Criminal
contempt
Punitive in nature
Purpose is to
preserve
the
court’s authority
and to punish for
REMEDIAL LAW
CIVIL PROCEDURE
Civil contempt
Remedial in nature
Purpose is to provide a
remedy for an injured
suitor and to coerce
compliance with an
order;
for
the
disobedience
its orders
of
Intent
necessary
is
preservation
rights
of
persons
of the
private
Intent is not necessary
Instituted
by
the
aggrieved party, or his
State is the real successor, or someone
prosecutor
who has a pecuniary
interest in the right to be
protected
Proof required is more
Proof required is
than
mere
proof
beyond
preponderance
of
reasonable doubt
evidence
If
accused
is If judgment is for
acquitted, there respondent, there can
can be no appeal be an appeal
[1 Regalado 909, 2010 Ed.]
According to manner of commission
a. Direct contempt: Act committed in the
presence of or so near the court or judge
as to obstruct or interrupt the proceedings
before the same.
b. Indirect contempt: One not committed in
the presence of the court. It is an act done
at a distance which tends to belittle,
degrade, obstruct, or embarrass the court
and justice.
[Lorenzo Shipping v. Distribution Management,
G.R. No. 155849 (2011)]
Direct contempt
Summary in nature
Punishment
a. If committed
against the RTC:
Fine of not
exceeding PHP
2,000 and/or
imprisonment
not exceeding
10 days or both
b. If committed
against the
Page 226 of 525
Indirect contempt
There is charge and
hearing
Punishment
a. If committed
against RTC:
Fine not
exceeding PHP
30,000 and/or
imprisonment
not exceeding 6
months or both
b. If committed
against MTC:
U.P. LAW BOC
CIVIL PROCEDURE
MTC: Fine not
Fine not
exceeding PHP
exceeding PHP
200 and or
5,000 and/or
imprisonment
imprisonment
not exceeding 1
not exceeding 1
day or both
month or both
Remedy is certiorari Remedy is appeal
or prohibition
Otherwise known as Otherwise known as
Contempt in Facie Constructive
Curiae
Contempt
[1 Regalado 909, 2010 Ed.]
Contempt, whether direct or indirect, may be
civil or criminal depending on the nature and
effect of contemptuous act. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)]
The real character of the proceedings in
contempt cases is to be determined by the
relief sought or by the dominant purpose.
The proceedings are to be regarded as criminal
when the purpose is primarily punishment, and
civil when the purpose is primarily
compensatory or remedial. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)]
b. Purpose and Nature of Each
DIRECT CONTEMPT
For a person to be adjudged guilty of direct
contempt, he must commit a misbehavior in the
presence of or so near a judge as to interrupt
the administration of justice. [SBMA v.
Rodriguez, G.R. No. 160270 (2010)]
Grounds
Misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings
before the same, including
a. Disrespect toward the court
b. Offensive personalities toward others, or
c. Refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or
deposition when lawfully required to do so.
[Sec. 1, Rule 71]
REMEDIAL LAW
Other examples:
a. Willful and deliberate forum shopping [Sec.
5, Rule 7]
b. Submission of pleadings containing
derogatory, offensive, and malicious
statements submitted to the court [Re:
Letter of Atty. Noel Sorreda, A.M. No. 053-4-SC (2005)]
Procedure
Summarily adjudged in contempt by such
court. [Sec. 1, Rule 71]
INDIRECT CONTEMPT
See Acts deemed punishable as indirect
contempt below.
c. Remedy
Against
Contempt; Penalty
Direct
The person adjudged in direct contempt by any
court may not appeal therefrom, but may avail
himself of the remedies of certiorari or
prohibition. [Sec. 2, Rule 71]
Effect of petition
The execution of the judgment shall be
suspended pending resolution of such
petition, provided such person file a bond fixed
by the court which rendered the judgment and
conditioned that he will abide by and perform
the judgment should the petition be decided
against him.
[Sec. 2, Rule 71]
Penalties
Offense
Penalty
Fine not exceeding PHP
If RTC or a court
2,000 or imprisonment
of equivalent or
not exceeding 10 days
higher rank
or both
Fine not exceeding PHP
If lower court
200 or imprisonment not
exceeding 1 day or both
[Sec. 1, Rule 71]
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d. Remedy
Against
Contempt; Penalty
Indirect
The judgment or final order of a court in a case
of indirect contempt may be appealed to the
proper court as in criminal cases.
Effect of appeal
Execution of the judgment or final order
shall not be suspended until a bond is filed by
the person adjudged in contempt, in an amount
fixed by the court front which the appeal is
taken, conditioned that if the appeal be decided
against him he will abide by and perform the
judgment or final order.
[Sec. 11, Rule 71]
A contempt proceeding, whether civil or
criminal, is still a criminal proceeding, hence,
acquittal is a bar to a second prosecution.
The distinction is only for the purpose of
determining the character of the punishment to
be administered. [Santiago v. Anunciacion,
G.R. No. 89318 (1990)]
Penalties
Offense
If
committed
against RTC, or
a
court
of
equivalent
or
higher rank
Penalty
Fine not exceeding PHP
30,000 or imprisonment
not exceeding 6 months,
or both [Sec. 7, Rule 71]
Fine not exceeding PHP
If
committed
500, or imprisonment not
against lower
exceeding 1 month, or
court
both [Sec. 7, Rule 71]
Offender may also be
ordered
to
make
complete restitution to
If the contempt the party injured by such
consists in the violation of the property
violation of a involved or such amount
writ
of as may be alleged and
injunction,
proved [Sec. 7, Rule 71]
TRO, or status
quo order
If there is nothing more to
return,
offender
is
personally liable for the
restitution of the money
REMEDIAL LAW
equivalent to the lost
thing [Rosario Textile
Mills v. CA, G.R. No.
137326 (2003)]
Penalty shall depend
If
committed upon the provisions of
against a person the law which authorizes
or
entity penalty for contempt
exercising quasi- against such persons or
judicial functions entities [Sec. 12, Rule
71]
e. How Contempt
Are Commenced
Proceedings
DIRECT CONTEMPT
By whom initiated:
a. Generally, civil contempt proceedings
should be instituted by an aggrieved party,
or his successor, or someone who has
pecuniary interest in the right to be
protected.
b. In criminal contempt proceedings, it is
generally held that the State is the real
prosecutor.
[People v. Godoy, G.R. Nos. 115908-09
(1995)]
INDIRECT CONTEMPT
Two modes of commencing a proceeding
a. Proceedings for indirect contempt may be
initiated motu proprio by the court
against which the contempt was committed
by an order or any other formal charge
requiring the respondent to show cause
why he should not be punished for
contempt.
b. In all other cases, charges for indirect
contempt shall be commenced by a
verified
petition
with
supporting
particulars and certified true copies of
documents or papers involved therein, and
upon full compliance with the requirements
for filing initiatory pleadings for civil actions
in the court concerned.
• If the contempt charges arose out of or
are related to a principal action pending
in the court, the petition for contempt
shall allege that fact but said petition
shall be docketed, heard and
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decided separately, unless the court
in
its
discretion
orders
the
consolidation of the contempt charge
and the principal action for joint hearing
and decision.
[Sec. 4, Rule 70]
Where to file charge
a. Where the charge for indirect contempt has
been committed against a RTC or a court
of equivalent or higher rank, or against an
officer appointed by it, the charge may be
filed with such court.
b. Where such contempt has been committed
against a lower court, the charge may be
filed with the RTC of the place in which the
lower court is sitting; but the proceedings
may also be instituted in such lower court
subject to appeal to the RTC of such place
in the same manner as provided in Sec. 2,
Rule 71.
[Sec. 5, Rule 71]
f. Acts Deemed Punishable as
Indirect Contempt
a. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions
b. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a court,
including the act of a person who, after
being dispossessed or ejected from any
real property by the judgment or process of
any court of competent jurisdiction, enters
or attempts or induces another to enter into
or upon such real property, for the purpose
of executing acts of ownership or
possession, or in any manner disturbs the
possession given to the person adjudged
to be entitled thereto
c. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt under
Sec. 1, Rule 71
d. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice
REMEDIAL LAW
e. Assuming to be an attorney or an officer of
a court, and acting as such without
authority;
f. Failure to obey a subpoena duly served
g. The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him
[Sec. 3, Rule 71]
Other examples
a. Submission, of a false certification of nonforum shopping or non-compliance with
any of the undertakings [Sec. 5, Rule 7]
b. Upon a judgment obligor’s failure to pay
any such installment when due without
good excuse, if the court orders him to pay
the judgment in fixed monthly installments
[Sec. 40, Rule 39]
g. When Imprisonment Shall Be
Imposed
a. When the contempt consists in the refusal
or omission to do an act which is yet in the
power of the respondent to perform, he
may be imprisoned by order of the court
concerned until he performs it. [Sec. 8,
Rule 71]
b. When the respondent “carried the keys to
his prison in his own pocket.” [Galvez v.
Republic Surety & Insurance Co., Inc.,
G.R. No. L-12581 (1959)]
Only the judge who ordered the confinement of
the person for contempt of court can issue the
Order of Release. [Inoturan v. Limsiaco, Jr.,
AM No. MTJ-01-1362 (2005)]
Sec. 8, Rule 71 does not apply to tenants who
refused or failed to pay their rentals to the
special administratrix of the property. The nonpayment of rentals, which is a civil debt, is
covered by the constitutional guarantee
against imprisonment. [1 Regalado 920, 2010
Ed.]
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h. Contempt
Against
judicial Bodies
REMEDIAL LAW
CIVIL PROCEDURE
Quasi-
Applicability of the rules
Unless otherwise provided by law, this Rule
shall apply to contempt committed against
persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall
have suppletory effect to such rules as they
may have adopted pursuant to authority
granted to them by law to punish for contempt.
[Sec. 12, Rule 71].
It is not within the jurisdiction and
competence of quasi-judicial bodies to
decide indirect contempt cases. (e.g.
DARAB has no power to decide the contempt
charge filed before it) [Land Bank v. Listana,
G.R. No. 152611 (2003)]
Acts or violations against quasi-judicial bodies
punishable as contempt: Where a person,
without lawful excuse, fails to appear, make
oath, give testimony or produce documents
when required to do so by the official or body
exercising such powers. Other acts or
violations cannot be punished as contempt
unless specifically defined in the governing law
as contempt of court or if it authorizes the
quasi-judicial body to punish for contempt, and
providing the corresponding penalty. [1
Regalado 921-922, 2010 Ed., citing People v.
Mendoza, G.R. No. L-5059-60 (1953), see
Sec. 13, Chapter 3, Book VII, Admin Code]
Note: Parts VI-VIII of the 2020 Bar Syllabus
are discussed under Special Procedure,
Criminal Procedure, and Evidence.
I.
REVISED RULES ON
SUMMARY PROCEDURE
1. CASES COVERED BY THE
RULE
[The 1991
Procedure]
Revised
Rule
on
Summary
Rule shall govern the summary procedure in
the MTC, MTC in Cities, MCTC in the following
cases falling within their jurisdiction:
Civil cases
1. Cases of forcible entry and unlawful
detainer
a. Irrespective of the amount of damages
or unpaid rentals sought to be
recovered
b. Where attorney’s fees are awarded, it
shall not exceed P20,000
2. All other civil cases where total amount of
plaintiff’s claim does not exceed PHP
100,000 or PHP 200,000 in Metropolitan
Manila, exclusive of interest and costs
• EXCEPT: probate proceedings
[Sec. 1, as amended by A.M. 02-11-09-SC]
Criminal cases
1. Traffic laws, rules, and regulations
violations
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
a. Irrespective of other imposable
penalties, accessory or otherwise, or of
civil liability arising therefrom
b. In offenses involving damage to
property through criminal negligence,
this rule shall govern where imposable
fine does not exceed P10,000.
[Sec. 1]
Where rule shall not apply
1. To a civil case where plaintiff’s cause of
action is pleaded in the same complaint
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with another cause of action subject to
ordinary procedure.
2. To a criminal case where offense charged
is necessarily related to another criminal
case subject to ordinary procedure.
[Sec. 1]
Determination of applicability
Upon filing, the court shall issue an order
declaring whether or not the case shall be
governed by this rule.
Note: A patently erroneous determination is a
ground for disciplinary action. [Sec. 2]
2. EFFECT OF
ANSWER
FAILURE
TO
Answer
The defendant shall file his answer within 10
days from service of summons.
1. Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for lack of jurisdiction over the
subject matter.
2. Cross-claims
and
compulsory
counterclaims not asserted in the answer
shall be considered barred.
3. The answer to counterclaims or crossclaims shall be filed and served within 10
days from service of the answer in which
they are pleaded.
[Sec. 5]
REMEDIAL LAW
3. PRELIMINARY CONFERENCE
AND APPEARANCES OF
PARTIES
Action of the court after filing of the
complaint
a. Outright dismissal
• After the court determines that the case
falls under summary procedure, it may,
from an examination of the allegations
therein and such evidence as may be
attached thereto, dismiss the case
outright on any of the grounds apparent
therefrom for the dismissal of a civil
action.
b. Issue summons
• If no ground for dismissal is found the
court shall issue summons which shall
state that the summary procedure
under this Rule shall apply.
[Sec. 4]
Effect of failure to answer
Should the defendant fail to answer the
complaint within the period above provided, the
court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint
and limited to what is prayed for therein.
Note: The court may in its discretion reduce the
amount of damages and attorney's fees
claimed for being excessive or otherwise
unconscionable. [Sec. 6]
Preliminary conference
1. Held not later than 30 days after the last
answer is filed,
2. The rules on pre-trial in ordinary cases
shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
3. The failure of the plaintiff to appear in the
preliminary conference shall be a cause for
the dismissal of his complaint.
4. The defendant who appears in the
absence of the plaintiff shall be entitled to
judgment on his counterclaim in
accordance with Sec. 6
5. All cross-claims shall be dismissed.
6. If a sole defendant shall fail to appear,
the plaintiff shall be entitled to judgment in
accordance with Sec. 6. This Rule shall not
apply where one of two or more defendants
sued under a common cause of action who
had pleaded a common defense shall
appear at the preliminary conference.
[Sec. 7]
This is without prejudice to the applicability of
now-Sec. 3(c), Rule 9 of ROC, if there are two
or more defendants. [Sec. 6]
Record of preliminary conference
The court shall issue an order stating the
matters taken up in the preliminary conference,
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within 5 days after the termination of the
preliminary conference. [Sec. 8]
Submission of affidavits and position
papers
Within 10 days from the receipt of the
record of preliminary conference, the parties
shall submit:
1. Affidavits of their witnesses,
2. Other evidence on the factual issues
defined in the order, and
3. Their position papers setting forth the law
and the facts relied upon by them. [Sec. 9]
Affidavits
The affidavits shall state only facts of direct
and personal knowledge of the affiants which
are admissible in evidence, if not, such affidavit
or portion thereof shall be expunged from the
record.
Note: Violation of this rule may subject the
party or counsel who submitted the defective
affidavit is subject to disciplinary action. [Sec.
20]
4. PROHIBITED
AND MOTIONS
PLEADINGS
Pleadings
The only pleadings allowed to be filed are:
1. Complaint
2. Compulsory counterclaim, pleaded in the
answer
3. Cross-claim, pleaded in the answer
4. Answer to these pleadings
Note: All pleadings shall be verified.
[Sec. 3]
Prohibited pleadings, motions, petitions
1. Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the
subject matter, or failure to comply with
referral to Lupon for conciliation when
required
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for opening of trial
4. Petition for relief from judgment
REMEDIAL LAW
5. Motion for extension of time to file
pleadings, affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints
12. Interventions
[Sec. 19]
5. APPEAL
Rendition of judgment
Within 30 days after receipt of the last affidavits
and position papers, or the expiration of the
period for filing the same, the court shall render
judgment. [Sec. 30]
Clarificatory procedure
Should the court find it necessary to clarify
certain material facts, it may within the same 30
days to render judgment, issue an order:
a. Specifying the matters to be clarified,
b. Requiring the parties to submit affidavits or
other evidence on the matters within 10
days from receipt of the order
In such case, judgment shall be rendered
within 15 days after the receipt of the last
clarificatory affidavits, or the expiration of the
period for filing the same.
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 v. Booc, G.R.
143331 (2007)]
Appeals
1. The judgment or final order of the MTC
shall be appealable to the appropriate
RTC.
2. The decision of the RTC in civil cases
governed by the Rule on Summary
Procedure shall be immediately executory
without prejudice to further appeal.
[Sec. 21].
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Note: When the case is already in the Regional
Trial Court, the Rule on Summary Procedure
no longer applies. It applies only in cases filed
before the MTCs. [Jakihaca v. Aquino, G.R.
No. 83982 (1990)]
J.
REMEDIAL LAW
Amended Rules. However, it is an allowable
affirmative defense that must be alleged in the
answer or else it will be deemed waived.
Hence, the court may not dismiss a case motu
proprio for failing to comply with the
requirement of a barangay conciliation.
1. Cases Covered
KATARUNGANG
PAMBARANGAY
[Revised Katarungang Pambarangay Law,
Secs. 399-422, R.A. 7160]
The primordial aim of the Katarungang
Pambarangay Law is to reduce the number of
court litigations and prevent deterioration of the
quality of justice which has been brought about
by the indiscriminate filing of cases in the
courts. [Zamora vs Heirs of Izquierdo, G.R. No.
146195 (2004)]
Nature of proceedings
The proceedings before the Lupong
Tagamayapa
or
the
Pangkat
ng
Tagapagkasundo of the barangay are not
judicial proceedings. They do not have
adjudicatory powers. They resolve disputes or
attempt to do so through amicable settlement,
conciliation, and arbitration. [1 Riano 659, 2016
Edition]
Importance
Where the case is covered by the Katarungang
Pambarangay Law, the compulsory process of
arbitration is required and is a precondition to
the filing of the complaint in the court.
The complaint should be dismissed where the
complaint:
a. Did not state that it is one of the excepted
cases,
b. Did not allege prior availment of the
conciliation process, or
c. Did not have a certification that no
conciliation or settlement had been
reached by the parties. [Agbayani v. CA,
G.R. No. 183623 (2012)]
Note: Failure to comply with a condition
precedent is no longer a ground for an
allowable motion to dismiss under the
The Lupon of each barangay shall have the
authority to bring together the parties actually
residing in the same city or municipality for
amicable settlement of all disputes. [Sec. 408,
LGC)
2. Subject Matter For Amicable
Settlement
All disputes are subject to Barangay
conciliation pursuant to the Revised
Katarungang Pambarangay Law and prior
recourse thereto is a pre-condition before filing
a complaint in court or any government offices.
[Administrative Circular 14-93]
3. Venue
Rules on venue
Dispute
Venue
Disputes
between
Shall be brought
persons
actually
before the lupon of
residing in the same
said barangay
barangay
Shall be brought in
the barangay where
Disputes involving
the respondent or
actual residents of
any
of
the
different barangays
respondents actually
within the same city
resides,
at
the
or municipality
election
of
the
complainant
Shall be brought in
Disputes involving the barangay where
real property or any the real property or
interest therein
the larger portion
thereof is situated.
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Disputes
arising
from the workplace
where
the
contending parties
are employed or at
the institution where
such parties are
enrolled for study
[Sec. 409, LGC]
CIVIL PROCEDURE
Shall be brought in
the barangay where
such workplace or
institution is located.
Objections
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay. Otherwise, the same shall be
deemed waived. [Sec. 409, LGC]
4. When Parties May Directly Go
To Court
Barangay conciliation is not necessary before
filing a complaint:
1. Where one party is the government, or any
subdivision or instrumentality thereof;
2. Where one party is a public officer or
employee and the dispute relates to the
performance of his official functions;
3. Where the dispute involves real properties
located
in
different
cities
and
municipalities;
- unless the parties thereto agree to
submit their differences to amicable
settlement by an appropriate Lupon
4. Any complaint by or against corporations,
partnerships, or juridical entities;
5. Disputes involving parties who actually
reside in barangays of different cities or
municipalities;
- Except where such barangay units
adjoin each other and the parties agree
to submit to amicable settlement by an
appropriate Lupon
6. Offenses for which the law prescribes a
maximum penalty of imprisonment
exceeding 1 year or a fine of over P5,000;
7. Offenses where there is no private
offended party;
8. Disputes where urgent legal action is
necessary to prevent injustice from being
REMEDIAL LAW
committed or further continued, specifically
the following:
a. Criminal cases where the accused is
under police custody or detention
b. Petition for habeas corpus
c. Actions coupled with provisional
remedies
d. Actions which may be barred by the
statute of limitations
9. Any class of disputes which the President
may determine in the interest of justice or
upon the recommendation of the Secretary
of Justice;
10. Where the dispute arises from the
Comprehensive Agrarian Reform Law;
11. Labor disputes or controversies arising
from employer-employee relations;
12. Actions to annul judgment upon a
compromise which may be filed directly in
the court.
[Administrative Circular 14-93]
5. Execution
Form of settlement
All amicable settlements shall:
a. Be in writing,
b. In a language or dialect known to the
parties,
c. Signed by the parties,
d. Attested to by the lupon chairman or the
pangkat chairman
[Sec. 411, LGC]
Effect of settlement
The amicable settlement and arbitration award
shall have the effect of a final judgment of a
court upon the expiration of 10 days from
the date thereof, unless repudiation has been
made or a petition to nullify the award has been
filed before the proper court. [Sec. 416, LGC]
Execution
Within 6 months from the date of the settlement
- execution by the lupon.
After the lapse of 6 months - execution by
action in the appropriate city or municipal court.
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REMEDIAL LAW
parties may enter into compromise at any
stage of the proceedings. [Sec. 28]
6. Repudiation
Repudiation of the settlement
Any party to the dispute may within 10 days
from the date of the settlement, repudiate the
same by:
a. Filing with the lupon chairman a
statement of repudiation,
b. Sworn before him, and
c. Claiming that his consent was vitiated
by fraud, violence, or intimidation.
Note: Such repudiation shall be a sufficient
basis for the issuance of the certification for
filing a complaint. [Sec. 418, LGC]
Effect of failure to repudiate
Failure to repudiate within the 10-day period
shall be deemed a waiver of the right to
challenge the settlement on the grounds of
vitiated consent by fraud, violence, or
intimidation. [Sec. 14, Rule VI, Katarungang
Pambarangay Rules]
Upon expiration of the 10-day period, the
settlement attains the status of finality and it
becomes the ministerial duty of the court to
implement and enforce it. [Quiros vs Arjona,
G.R. No. 158901 (2004)]
K.
RULES OF PROCEDURE
FOR SMALL CLAIMS CASES
[AM No. 08-8-7-SC, effective February 2016]
Purpose
The purpose of the small claims process is to
provide an inexpensive and expeditious means
to settle disputes over small amounts. [1 Riano
646, 2016 Edition]
Parties are encouraged to file small claims
court actions to resolve their minor disputes
as opposed to resorting to self-help or forcible
means to seek their remedy. [Explanatory note
to A.M. 08-8-7-SC]
Note: The rules of civil procedure shall apply
suppletorily. [Sec. 27] The rules on
mediation/JDR shall not apply inasmuch as the
1. Scope And Applicability Of
The Rule
Scope
This rule shall govern the procedure in actions
for payment of money where the value of the
claim does not exceed PHP 400,000 in cases
filed before the MeTC, and P300,000 in cases
filed before the MCTC, MTCS, and MTCC,
exclusive of interest and costs. [SC Resolution,
February 26, 2019]
Note: The Plaintiff may join one or more
separate small claims against a defendant
provided that the amount still falls within the
jurisdictional amount of the rules. [Sec. 8]
Applicability
This Rule is applicable in all actions which are
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment
or reimbursement of sum of money
a. For money owed under any of the
following:
i. Contract of Lease
ii. Contract of Loan
iii. Contract of Services
iv. Contract of Sale;
v. Contract of Mortgage
b. For liquidated damages arising from
contracts
c. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC.
[Sec. 5]
Counterclaims within the Coverage of Small
Claims
Compulsory
The defendant shall file a counterclaim in his
Response if he possesses a claim against the
plaintiff that:
1. Is within the coverage of this Rule,
exclusive of interest and costs;
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2. Arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim;
3. Does not require for its adjudication the
joinder of third parties; and
4. Is not the subject of another pending
action,
Note: Failure to do so will bar the defendant
from suing on the counterclaim. [Sec. 15]
Permissive
The defendant may also elect to file a
counterclaim if:
a. It is a claim that does not arise from the
same transaction or occurrence,
b. The amount and nature is within the
coverage of the Rule, and
c. The prescribed docket fees and other legal
fees are paid.
[Sec. 15]
REMEDIAL LAW
Note: 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 admission of additional evidence.
[Sec. 6]
Affidavits
The affidavits submitted shall state only:
a. Facts of direct personal knowledge of the
affiants, and
b. Based on authentic records which are
admissible in evidence.
Effect of violation:
a. The party and counsel who submitted such
shall be subject to disciplinary action.
b. The inadmissible affidavit or portion of
which shall be expunged from the record.
Note: Non-submission of affidavits shall cause
the immediate dismissal of the claim or
counterclaim. [Sec. 9]
2. Commencement Of Small
Claims Action; Response
Venue
General Rule: The regular rules on venue
apply
How commenced
By filing with the court an accomplished and
verified STATEMENT OF CLAIM in duplicate.
[Sec. 6]
- Stating if he/she/it is engaged in the
business of lending, banking and similar
activities, and the number of small claims
cases filed within the calendar year
regardless of judicial station. [Sec. 6]
Note: Misrepresentation as to not being
engaged in such business shall cause the
statement of claim to be dismissed with
prejudice and for the plaintiff to be meted the
appropriate sanctions such as direct contempt.
[Sec. 11]
Exception: Plaintiffs engaged in the business
of lending, banking, and similar activities who
have a branch within the municipality/city
where the defendant resides must file in such
municipality/city. [Sec. 7]
Attachments to the Statement of Claim
1. Certification of Non-forum Shopping,
Splitting a Single Cause of Action, and
Multiplicity of Suits,
2. Two (2) duly certified photocopies of the
actionable document/s subject of the claim,
and
3. Affidavits of witnesses and other evidence
to support the claim
Payment of filing fees
The plaintiff shall pay the docket and other
legal fees prescribed under Rule 141, unless
allowed to litigate as an indigent
Note: Exemption from the payment of filing
fees shall be granted only by the SC.
If more than 5 small claims are filed by one
party within the calendar year, regardless of
the judicial station, an additional filing fee of
PHP 500 shall be paid for every claim filed after
the 5th claim, and an additional 100.00 or a
total of 600.00 for every claim filed after the
tenth 10th claim, and another 100.00 or a total
of 700 for every claim filed after the 15th claim,
progressively and cumulatively.
If the plaintiff is engaged in the business of
banking, lending and similar activities, the
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amount of filing and other legal fees shall be
the same as those applicable to cases filed
under the regular rules.
A claim filed with a motion to sue as
indigent shall be referred to the Executive
Judge for immediate action in case of multisala courts.
1. 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.
2. If the motion is denied, the plaintiff shall
be given 5 days within which to pay the
docket fees, otherwise, the case shall be
dismissed without prejudice.
Note: 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. [Sec. 10]
Court action on statement of claim
If no ground for dismissal is found, the court
shall:
a. Issue summons directing the defendant to
submit a verified response.
- Accompanied by a copy of the statement
of claims, documents submitted by
plaintiff, and a blank response form.
b. Issue a notice of hearing to both parties.
- Containing the date of hearing, and the
express prohibition against filing of a
motion to dismiss.
- Note: No unjustified postponement shall
be allowed.
[Sec. 12]
Summons
If it is returned without being served, the court
shall order the plaintiff to cause service of
summons and to inform the court if service was
made within 30 days. Otherwise, the statement
of claims shall be dismissed without prejudice
as to those not served. [Sec. 12]
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 10 days from receipt of summons.
[Sec. 13]
REMEDIAL LAW
Attachments to response
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
Note: No evidence shall be allowed during
hearing which was not attached or submitted
together with the Response, unless good
cause is shown for the admission of additional
evidence. [Sec. 13]
Effect of failure to file response
a. If the defendant also fails to appear on the
date set for hearing – the court by itself
shall render judgment as may be warranted
by the facts alleged in the Statement of
claim.
b. If the defendant appears on the date set
for hearing – the court shall ascertain what
defense he/she/it has to offer which shall
constitute his/her/its Response, and
proceed to hear or adjudicate the case on
the same day as if a Response has been
filed. [Sec. 14]
Dismissal
When the case falls under the rules
1. From the examination of the Statement of
Claims and the evidence attached, the
court may dismiss the case outright on any
of the grounds for the dismissal of the case
and state if such dismissal is with or without
prejudice.
2. If, during the hearing, the court is able to
determine that there exists a ground for
dismissal, the court may dismiss the case
even if the ground is not pleaded in the
Response.
Note: If a case is filed under the regular or
summary procedure, but actually falls under
this Rule, the case shall be referred to the
Executive Judge for appropriate assignment.
[Sec. 11]
When the case does not fall under the rules
If the case falls under summary or regular
procedure, the case shall not be dismissed.
Instead, the case shall be:
1. Re-docketed under the appropriate
procedure, and
2. Returned to the court where it was
assigned, subject to payment of any
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deficiency in the applicable regular rate of
filing fees.
[Sec. 11]
3. Prohibited
Motions
Pleadings
And
The following pleadings, motions, or petitions
shall not be allowed in small claims cases:
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply and Rejoinder;
11. Third-party complaints; and
12. Interventions
[Sec. 16]
4. Appearances
General Rule: The parties shall personally
appear on the designated date of hearing.
[Sec. 18]
Exceptions:
a. Appearance through a representative must
be for a valid cause. [Sec. 18]
b. If the court determines that a party cannot
properly present his/her claim or defense
and needs assistance, the court may allow
another individual who is not an attorney to
assist the party upon his consent. [Sec. 19]
Representative
a. Must not be a lawyer,
Note: Juridical entities shall not be
represented by a lawyer in any capacity.
b. Must be related to or next-of-kin of the
individual-party, and
REMEDIAL LAW
c. Authorized under a Special Power of
Attorney
- to enter into an amicable settlement of the
dispute and to enter into stipulations or
admissions of facts and of documentary
exhibits.
[Sec. 18]
Note: An attorney may only appear in a small
claims case when the attorney himself is the
plaintiff/defendant. [Sec. 19]
Failure to appear
1. If plaintiff fails to appear – it shall be a
cause for dismissal without prejudice. The
defendant present shall be entitled to
judgment on permissive counterclaim.
2. If defendant fails to appear – same effect
as failure to file Response.
3. If both plaintiff and defendant fail to appear
– dismissal with prejudice of both the
Statement of Claim and the Counterclaim.
[Sec. 20]
5. Hearing; Duty Of The Judge
When conducted
The hearing shall be set not more than 30 days
from the filing of the statement of claims. [Sec.
12]
Postponement of hearing
A request for postponement of hearing may be
granted only upon proof of the physical inability
of the party.
Note: A party may only avail of 1 postponement
[Sec. 21]
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. [Sec. 22]
Hearing
1. At the hearing, the judge shall first exert
efforts to bring the parties to an amicable
settlement of their dispute.
2. If the attempt at an amicable settlement
fails, the hearing shall so proceed in an
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informal and expeditious manner and shall
be terminated within the same day. [Sec.
23]
Any settlement or resolution of the dispute shall
be:
1. Reduced into writing;
2. Signed by the parties; and,
3. Submitted to the court for approval
[Sec. 23]
6. FINALITY OF JUDGMENT
Decision
1. After the hearing, the court shall render its
decision
within
24
hours
from
termination of the hearing, based on the
facts established by the evidence.
2. The decision shall immediately be
entered by the Clerk of Court in the court
docket for civil cases and a copy thereof
forthwith served on the parties.
3. The decision shall be final, executory,
and unappealable
[Sec. 24]
REMEDIAL LAW
L.
RULES OF PROCEDURE
FOR ENVIRONMENTAL CASES
[A.M. No. 09-6-8-SC]
1. Scope And Applicability Of
The Rule
These Rules shall govern the procedure in
1. Civil,
2. Criminal and
3. Special civil actions
Before
1. Regional Trial Courts,
2. Metropolitan Trial Courts
3. Municipal Trial Courts in Cities
4. Municipal Trial Courts and
5. Municipal Circuit Trial Courts
Involving enforcement or violations of
environmental and other related laws, rules
and regulations.
2. Civil Procedure
Execution
Execution shall issue upon motion of the
winning party.
Considering that small claims cases are
exclusively within the jurisdiction of the MTC,
Municipal Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts,
certiorari petitions assailing its dispositions
should be filed before their corresponding
Regional Trial Courts. [A.L. Ang Network v.
Mondejar, G.R. No. 200804 (2014)]
Who May File
Any real party in interest, including the
government and juridical entities authorized by
law, may file a civil action involving the
enforcement or violation of any environmental
law. [Sec. 4, Rule 2]
Form
The verified complaint shall contain:
a. The names of the parties,
b. Their addresses,
c. The cause of action,
d. The reliefs prayed for,
e. Shall state that it is an environmental case
and the law involved, and
f. Include a certification against forum
shopping
Note: If the complaint is not an environmental
complaint, the judge shall refer it to the
executive judge for re-raffle. [Sec. 3, Rule 2]
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The plaintiff shall attach all the evidence
proving or supporting the cause of action
consisting of affidavits of witnesses,
documentary evidence, and if possible, object
evidence.
- The affidavits shall be in question and
answer form and shall comply with the
rules of admissibility of evidence. [Sec. 3,
Rule 2]
Service of the complaint on the government
Upon filing of the complaint, the plaintiff is
required to furnish the government or the
appropriate agency, although not a party, a
copy of the complaint.
Note: Proof of service shall be attached to the
complaint. [Sec. 6, Rule 2]
Citizen Suit
1. Any Filipino citizen in representation of
others, including minors or generations
yet unborn, may file an action to enforce
rights or obligations under environmental
laws.
2. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a
brief description of the cause of action and
the reliefs prayed for, requiring all
interested parties to manifest their interest
to intervene in the case within 15 days from
notice thereof.
3. The plaintiff may publish the order once in
a newspaper of a general circulation in the
Philippines or furnish all affected
barangays copies of said order.
Note: Citizen suits filed under R.A. 8749 (Clean
Air Act) and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their
respective provisions.
[Sec. 5, Rule 2]
Declaration of Default Motu Proprio
Should the defendant fail to answer the
complaint within the period provided, the court
shall declare defendant in default and upon
motion of the plaintiff, shall receive evidence ex
parte and render judgment based thereon and
the reliefs prayed for [Sec. 15, Rule 2]
REMEDIAL LAW
Procedure
Filing of verified Complaint accompanied by
1. affidavits of witnesses, documentary
evidence, and if possible, object
evidence, and
2. certification against forum shopping
[Sec. 3, Rule 2]
↓
Referral/Assignment by raffle to branch of
court
↓
Issuance of Temporary Environmental
Protection Order (TEPO), when proper,
effective for 72 hours from receipt and,
during the same period, conduct of a
summary hearing for the extension of the
effectivity of the TEPO [Sec. 8, Rule 2]
↓
Service of Summons [Sec. 13, Rule 2]
↓
Filing of verified Answer within 15 days from
receipt of summons [Sec. 14, Rule 2]
↓
Issuance of Notice of Pre-trial within 2 days
from filing of Answer [Sec. 1, Rule 3]
↓
Submission of Pre-Trial Briefs 3 days before
pre-trial [Sec. 2, Rule 3]
↓
Referral to Mediation, Mediation and
Mediation Report [Sec. 3, Rule 3]
↓
Preliminary Conference [Sec. 4, Rule 3]
↓
Pre-trial Conference/s [Sec. 5, Rule 3]
↓
Pre-trial Order [Sec. 9, Rule 3]
↓
Continuous Trial [Sec. 1, Rule 4]
↓
Judgment and Execution [Rule 5]
Period to Try and Decide
1. The court shall have a period of 1 year from
the filing of the complaint to try and decide
the case.
2. Before the expiration of the 1-year period,
the court may petition the SC for the
extension of the period for justifiable cause.
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3. The court shall prioritize the adjudication of
environmental cases.
[Sec. 5, Rule 4]
a. Prohibition Against Temporary
Restraining
Order
and
Preliminary Injunction
Rules
Except the SC, no court can issue a TRO or
writ of preliminary injunction against lawful
actions of government agencies that enforce
environmental laws or prevent violations
thereof. [Sec. 10, Rule 2]
Report on TEPO, EPO, TRO, or preliminary
injunction
The judge shall report any action taken on a
TEPO, EPO, TRO, or preliminary injunction,
including its modification and dissolution, to the
SC through the OCA within 10 days from the
day the action is taken. [Sec. 11, Rule 2]
b. Pre-trial Conference; Consent
Decree
Pre-trial conference
1. The judge shall put the parties and their
counsels under oath, and they shall
remain under oath in all pre-trial
conferences.
2. The judge shall exert best efforts to
persuade the parties to arrive at a
settlement of the dispute.
- The judge may issue a consent decree
approving the agreement between the
parties in accordance with law, morals,
public order and public policy to protect
the right of the people to a balanced and
healthful ecology
Note: Evidence not presented during the pretrial, except newly-discovered evidence, shall
be deemed waived.
[Sec. 5, Rule 3]
Consent decree - A judicially-approved
settlement between concerned parties based
on public interest and public policy to protect
and preserve the environment. [Sec. 4(b), Rule
1]
c. Prohibited
Motions
REMEDIAL LAW
Pleadings
and
The following pleadings or motions shall not
be allowed:
1. Motion to dismiss the complaint;
2. Motion for a bill of particulars;
3. Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed 15 days;
4. Motion to declare the defendant in default;
5. Reply and rejoinder; and
6. Third party complaint [Sec. 2, Rule 2]
d. Temporary
Environmental
Protection Order
Ground for Issuance
If it appears from the verified complaint with a
prayer for the issuance of an EPO that
a. The matter is of extreme urgency and
b. The applicant will suffer grave injustice and
irreparable injury. [Sec. 8, Rule 2]
Note: The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO.
[Sec. 8, Rule 2]
Period of Effectivity
72 hours from date of the receipt of the TEPO
by the party or person enjoined. [Sec. 8, Rule
2]
Duty of Court
1. Within the 72-hour period, the court shall
conduct a summary hearing to determine
whether the TEPO may be extended until
the determination of the case. [Sec. 8, Rule
2]
2. The court where the case is assigned, shall
periodically monitor the existence of acts
that are the subject matter of the TEPO
even if issued by the executive judge, and
may lift the same at any time as
circumstances may warrant [Sec. 8, Rule
2]
Ground to dissolve TEPO
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
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cause irreparable damage to the party or
person enjoined while the applicant may be
fully compensated for such damages as he
may suffer and subject to the posting of a
sufficient bond by the party or person enjoined.
Note: The grounds for a motion to dissolve a
TEPO shall be supported by affidavits of the
party or the person enjoined which the
applicant may oppose, also by affidavits. [Sec.
9, Rule 2]
e. Judgment
and
Execution;
Reliefs in a Citizen’s Suit
Judgment not stayed by appeal
Any judgment directing the performance of acts
for the protection, preservation or rehabilitation
of the environment shall be executory
pending appeal unless restrained by the
appellate court. [Sec. 2, Rule 5]
Reliefs in a citizen suit
a. If warranted, the court may grant to the
plaintiff proper reliefs which shall include—
1. The protection, preservation or
rehabilitation of the environment and
2. The payment of attorney’s fees, costs
of suit, and other litigation expenses.
b. The court may also require the violator
1. To submit a program of rehabilitation or
restoration of the environment, the
costs of which shall be borne by the
violator or
2. To contribute to a special trust fund for
that purpose subject to the control of
the court.
[Sec. 1, Rule 5]
No damages can be awarded in a citizen
suit
This measure is in line with the policy that a
citizen suit is filed in the public interest, and in
effect, it is the environment which is vindicated
in the action. The only recourse of a party or
person who wishes to recover damages for
injury suffered is to file a separate action under
Sec. 4, Rule 2. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]
REMEDIAL LAW
f. Permanent
Environmental
Protection Order; Writ of
Continuing Mandamus
Court action
In the judgment, the court may—
a. Convert the TEPO to a permanent EPO, or
b. Issue a writ of continuing mandamus
directing the performance of acts which
shall be effective until the judgment is fully
satisfied.
[Sec. 3, Rule 5]
Definition
Environmental protection order - An order
issued by the court directing or enjoining any
person or government agency to perform or
desist from performing an act in order to
protect, preserve, or rehabilitate the
environment. [Sec. 3(d), Rule 1]
Writ of continuing mandamus - A writ issued
by a court in an environmental case directing
any agency or instrumentality of the
government or officer thereof to perform an act
or series of acts decreed by final judgment
which shall remain effective until judgment is
fully satisfied. [Sec. 3(c), Rule 1]
Execution
The court may, by itself or through the
appropriate government agency:
a. Monitor the execution of the judgment, and
b. Require the party concerned to submit
written reports on a quarterly basis or
sooner as may be necessary.
- The reports shall detail the progress of
the execution and satisfaction of the
judgment.
- The other party may, at its option, submit
its comments or observations on the
execution of the judgment. [Sec. 3, Rule
5]
Return of writ of execution
The process of execution shall terminate upon
a sufficient showing that the decision or order
has been implemented to the satisfaction of the
court in accordance with Sec. 14, Rule 39 of
the ROC.
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[Sec. 2, Rule 6]
g. Strategic
Lawsuit
Public Participation
Against
Definition
SLAPP refers to a legal action filed to harass,
vex, exert undue pressure or stifle any legal
recourse that any person, institution or the
government has taken or may take in the
enforcement of environmental laws, protection
of the environment or assertion of
environmental rights. [Sec. 1, Rule 6]
Applicability
The SLAPP provisions apply not only to suits
that have been filed in the form of a
countersuit, but also to suits that are about
to be filed with the intention of discouraging
the aggrieved person from bringing a valid
environmental complaint before the court.
[Annotation to the Rules of Procedure for
Environmental Cases, Supreme Court SubCommittee]
Illustrations:
a. X files a complaint in an environmental
case against A [violator of environmental
laws] and the A retaliates by filing a
complaint for damages against X;
b. X is a witness in a pending environmental
case against A and A retaliates by filing a
complaint for damages or libel against X; or
c. X is an environmental advocate who rallies
for the protection of environmental rights
and a complaint for damages is filed
against him by A [Annotation to the Rules
of Procedure for Environmental Cases,
Supreme Court Sub-Committee]
SLAPP as a defense
In a SLAPP filed against a person involved in
the enforcement of environmental laws,
protection of environment, or assertion of
environmental rights, the defendant may:
a. File an answer interposing as a defense
that the case is a SLAPP and shall be
supported by documents, affidavits,
papers, and other evidence, and
b. By way of counterclaim, pray for damages,
attorney’s fees, and costs of suit.
The court shall direct the plaintiff or adverse
party within 15 days from filing the comment or
lapse of period to:
a. File an opposition showing that the suit is
not a SLAPP,
b. Attaching evidence in support thereof.
[Sec. 2, Rule 6]
The defense shall be set for hearing by the
court after issuance of an order to file an
opposition within 15 days from filing of the
comment of lapse of the period. [Sec. 2, Rule
6]
- Hearing shall be summary in nature,
- Parties must submit all available evidence
in support of their respective positions.
[Sec. 3, Rule 6]
Quantum of Evidence
a. Party seeking the dismissal of the case
must prove by substantial evidence that
his acts for the enforcement of
environmental law is a legitimate action for
the
protection,
preservation
and
rehabilitation of the environment
b. Party filing the action assailed as a
SLAPP shall prove by preponderance of
evidence that the action is not a SLAPP
and is a valid claim
[Sec. 3, Rule 6]
Resolution of the Defense of a SLAPP
a. If action is dismissed, dismissal is with
prejudice
b. If defense of SLAPP is rejected, action
will proceed and evidence adduced during
the summary hearing shall be treated as
evidence of the parties on the merits of the
case.
[Sec. 4, Rule 6]
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i.
3. Special Proceedings
a. Writ of Kalikasan
When available
It is a remedy available:
a. To a natural or juridical person, entity
authorized by law, people’s organization,
NGO, or any public interest group
accredited by or registered with any
government agency,
b. On behalf of persons whose constitutional
right to a balanced and healthful ecology is
violated or threatened with violation,
c. By an unlawful act or omission of a public
official or employee, or private individual or
entity,
d. Involving environmental damage to such
magnitude as to prejudice the life, health,
or property of inhabitants in two or more
cities or provinces. [Sec. 1, Rule 7]
Note: The filing of the petition shall not preclude
the filing or separate civil, criminal, or
administrative actions. [Sec. 17, Rule 7]
Where to file
The petition shall be filed with the SC or any of
the stations of the CA. [Sec. 3, Rule 7]
Form
The verified petition shall contain the
following:
a. The personal circumstances of the
petitioner;
b. The name and personal circumstances of
the respondent or if unknown/uncertain, an
assumed appellation of the respondent;
c. The environmental law, rule, or regulation
violated or threatened to be violated;
d. The act or omission complained of;
e. The environmental damage of such
magnitude as to prejudice the life, health,
or property of the inhabitants in 2 or more
cities or provinces;
f. All relevant and material evidence;
- Affidavits,
documentary
evidence,
scientific/expert
studies,
object
evidence
g. Certification of the petitioner under oath
that:
Petitioner has not commenced any
action or filed any claim involving the
same issues in any court, tribunal, or
quasi-judicial agency, and no such
action is pending;
ii.
If there is an action pending, the
complete statement of its present
status;
iii.
If the petitioner shall learn that there is a
pending action, he shall report such to
the court within 5 days.
h. Reliefs prayed for which may include a
TEPO.
[Sec. 2, Rule 7]
Exemption from docket fees
The petitioner shall be exempt from the
payment of docket fees. [Sec. 4, Rule 7]
Procedure
Filing of verified Petition with Certificate
Against Forum Shopping [Sec. 2, Rule 7]
↓
Issuance of Writ of Kalikasan within 3 days
from filing of petition [Sec. 5, Rule 7]
↓
Service of the Writ [Sec. 6, Rule 7]
↓
Filing of a verified Return within a nonextendible period of 10 days after service of
the writ [Sec. 7, Rule 7]
↓
Hearing (court may call for preliminary
conference) [Sec. 11, Rule 7]
↓
Judgment [Sec. 15, Rule 7]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued within 3
days from the date of filing.
- The respondent shall be required to file a
verified return.
- The order shall include the issuance of a
cease and
desist order and other
temporary reliefs effective until further
order. [Sec. 5, Rule 7]
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Judgment
Judgment shall be rendered granting or
denying the writ of kalikasan within 60 days
from the time the petition is submitted for
decision.
Reliefs that may be granted under the writ:
a. Directing the respondent to permanently
cease and desist from committing
acts/neglecting the performance of a duty
in violation of environmental laws resulting
in environmental destruction or damage;
b. Directing the respondent to protect,
preserve, rehabilitate, or restore the
environment;
c. Directing the respondent to monitor strict
compliance with the decisions and orders
of the court;
d. Directing the respondent to make periodic
reports on the execution of the final
judgment; and
e. Such other reliefs which relate to the right
of the people to a balance and healthful
ecology or to the protection, preservation,
rehabilitation, or restoration of the
environment.
Note: An award of damages to individual
petitioners is not allowed as a relief. [Sec. 15,
Rule 7]
Appeal
Any party may appeal to the SC under Rule 45
of the ROC within 15 days from notice of the
adverse judgment or denial of MR.
Note: The appeal may raise questions of fact.
[Sec. 16 Rule 7]
b. Prohibited
Motions
Pleadings
and
The following pleadings and motions are
prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default.
REMEDIAL LAW
[Sec. 9, Rule 7]
c. Discovery Measures
A party may file a verified motion for the
following reliefs:
a. Ocular Inspection
b. Production or inspection of documents and
things
The motion must show that the order granting
either relief is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of
inhabitants in two or more cities or provinces.
[Sec. 12, Rule 7]
OCULAR INSPECTION
Purpose
To order any person in possession or control of
a designated land or other property to permit
entry for the purpose of inspecting or
photographing the property or any relevant
object or operation thereon. [Sec. 12, Rule 7]
Requirements
The motion must:
a. Show that an ocular inspection order is
necessary to establish the magnitude of
the violation/threat;
b. State in detail the place/places to be
inspected;
c. Be supported by affidavits of witnesses
who have personal knowledge of the
violation/threatened violation.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
inspection, and
b. The date, time, place, and manner of
making the inspection, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
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PRODUCTION
OR
INSPECTION
OF
DOCUMENTS AND THINGS
Purpose
To order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects
or tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
[Sec. 12, Rule 7]
Requirements
The motion must show that the production
order is necessary to establish the magnitude
of the violation or threat.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
production, and
b. The date, time, place, and manner of
making the inspection or production, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
d. Writ of Continuing Mandamus
Definition
A writ issued by a court in an environmental
case directing any agency or instrumentality of
the government or officer thereof to perform an
act or series of acts decreed by final judgment
which shall remain effective until judgment is
fully satisfied. [Sec. 3(c), Rule 1]
When available
When any agency or instrumentality of the
government or officer:
a. Unlawfully neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust or station
in connection with the enforcement or
violation of an environmental law, rule or
regulation or a right therein; or
b. Unlawfully excludes another from the use
or enjoyment of such right; and
REMEDIAL LAW
c. There is no other plain, speedy and
adequate remedy in the ordinary course of
law.
[Sec. 1, Rule 8]
Where to file
The petition shall be filed with the RTC
exercising jurisdiction over the territory where
the actionable neglect or omission occurred or
with the CA or SC. [Sec. 2, Rule 8]
Form
The person aggrieved may file a verified
petition:
a. Alleging the facts with certainty,
b. Attach supporting evidence,
c. Specifying that the petition concerns an
environmental law, rule, or regulation, and
d. Praying that judgment be rendered:
i.
Commanding the respondent to do an
act or series of acts until the judgment
is fully satisfied, and
ii.
To pay damages sustained by the
petitioner by reason of the malicious
neglect to perform the duties of the
respondent, under the law, rules, or
regulations.
e. Accompanied by a sworn certification of
non-forum shopping. [Sec. 1, Rule 8]
Procedure
File the verified petition [Sec. 1, Rule 8]
↓
Issuance of Writ of Continuing Mandamus
and Order to Comment [Sec. 4, Rule 8]
↓
Filing of Comment within 10 days after
receipt of Order [Sec. 4, Rule 8]
↓
Summary Hearing [Sec. 6, Rule 8]
↓
Judgment [Sec. 7, Rule 8]
↓
Return of the Writ [Sec. 8, Rule 8]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued and the
court shall require the respondent to comment.
[Sec. 4, Rule 8]
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Note: The court may grant a TEPO for the
preservation of the rights of the parties pending
proceedings. [Sec. 5, Rule 8]
Judgment
If warranted, the court shall grant the privilege
of the writ of continuing mandamus:
a. Requiring respondent to perform an act or
series of acts until the judgment is fully
satisfied,
b. Grant such other reliefs as may be
warranted resulting from the wrongful or
illegal acts of the respondent,
c. Require the respondent to submit periodic
reports detailing the progress and
execution of judgment.
Note: The court may by itself or through the
commissioner or the appropriate government
agency, evaluate and monitor compliance. The
petitioner may also submit its comments or
observations on the execution of judgment.
[Sec. 7, Rule 8]
Return of the writ
The periodic reports submitted shall be
contained in partial returns of the writ.
Upon final satisfaction of the judgment, a final
return of the writ shall be made to the court
by the respondent. [Sec. 8, Rule 8]
Distinctions Between Writ of Kalikasan and
Writ of Continuing Mandamus
Writ of Continuing
Writ of Kalikasan
Mandamus
[Rule 7]
[Rule 8]
Subject Matter
Available against an Directed against
unlawful
[a] the unlawful
act or omission of a neglect
in
the
public
official
or performance of an
employee, or private act
specifically
individual or entity, enjoined by law in
involving
connection with the
environmental
enforcement/
damage of such violation
of
an
magnitude as to environmental rule
prejudice the life, or
health or property of [b] the unlawfully
inhabitants in two or exclusion of another
more
cities
or from the use or
provinces [Sec. 1]
enjoyment of such
REMEDIAL LAW
right and in both
instances, there is
no
other
plain,
speedy
and
adequate remedy in
the ordinary course
of law.
[Sec. 1]
Who May File
Natural and
juridical persons
b. Entities
authorized by
law
c. POs, NGOs,
Person personally
PIG, on behalf of aggrieved by the
persons whose
unlawful
act
or
right to a
omission [Sec. 1]
balanced and
healthful ecology
is violated or
threatened to be
violated [Sec. 1]
Respondent
May be public or
Government or its
private individual or
officers [Sec. 1]
entity [Sec. 1]
Docket Fees
Exempted [Sec. 4]
Exempted [Sec. 3]
Venue
a. RTC exercising
territorial
jurisdiction,
SC or CA [Sec. 2]
b. CA,
c. SC
[Sec. 3]
Discovery Measures
Ocular
Inspection
and Production or
None
Inspection
Order
[Sec. 12]
Damages
Not allowed [Sec. 17] Allowed [Sec. 1]
a.
4. Criminal Procedure
Filing of the information
An information, charging a person with a
violation of an environmental law and
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subscribed by the prosecutor, shall be filed with
the court. [Sec. 2, Rule 9]
Provisional remedies available
1. Attachment in environmental cases
- Provisional remedy of attachment under
R127 of ROC may be availed of in
environmental cases. [Sec. 1, Rule 13]
2. EPO/TEPO
- The procedure for the issuance of such
shall be governed by Rule 2 of these
Rules. [Sec. 2, Rule 13]
a. Who May File
Who may file
Any offended party, peace officer, or any public
officer charged with the enforcement of an
environmental law may file a complaint before
the proper officer in accordance with the ROC.
[Sec. 1, Rule 9]
Special prosecutor
When there is no private offended party, a
counsel whose services are offered by any
person or organization may be allowed by the
court as a special prosecutor, with the
consent of and subject to the control and
supervision of the public prosecutor. [Sec. 3,
Rule 9]
b. Institution of Criminal and Civil
Action
General rule: When a criminal action is
instituted, the civil action for the recovery of civil
liability arising from the offense charged, shall
be deemed instituted with the criminal
action.
Exception:
When the complainant:
a. Waives the civil action,
b. Reserves the right to institute it separately,
or
- Shall be done during arraignment
c. Institutes the civil action prior to the criminal
action. [Sec. 1, Rule 10]
REMEDIAL LAW
Civil liability/damages
When civil liability is imposed or damages are
awarded:
- The filing and other legal fees shall be
imposed on the award in accordance with
R141 of ROC.
- The fees shall constitute a first lien on the
judgment award
[Sec. 1, Rule 10]
The damages awarded in cases where there
is no private offended party, less the filing fees,
shall accrue to the funds of the agency charged
with the implementation of the environmental
law violated.
- The award shall be used for the restoration
and rehabilitation of the environment
adversely affected. [Sec. 1, Rule 10]
c. Arrest Without Warrant, When
Valid
Warrant of arrest
All warrants of arrest issued by the court shall
be accompanied by a certified true copy of the
information filed with the issuing court. [Sec. 2,
Rule 11]
Arrest without warrant; when lawful
A peace officer or an individual deputized
by the proper government agency may, without
a warrant, arrest a person:
a. When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense; or
b. When an offense has just been committed,
and he has probable cause to believe
based on personal knowledge of facts and
circumstances that the person to be
arrested has committed it.
Note: Individuals deputized by the proper
government agency who are enforcing
environmental
laws
shall
enjoy
the
presumption of regularity. [Sec. 1, Rule 11]
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bank for disposition according to the
judgment. [Sec. 2, Rule 12]
d. Procedure in The Custody and
Disposition of Seized Items
Custody and disposition of seized items
The custody and disposition of seized items
shall be in accordance with the applicable laws
or rules promulgated by the concerned
government agency. [Sec. 1, Rule 12]
Procedure
In the absence of applicable laws or rules
promulgated by the concerned government
agency, the following procedure shall be
observed:
1. The apprehending officer having initial
custody and control of the seized items,
equipment, paraphernalia, conveyances,
and instruments shall physically inventory
and whenever practicable, photograph the
same in the presence of the person from
whom such items were seized.
2. The apprehending officer shall:
a. Submit to the court, he return from
the search warrant within 5 days from
date of seizure, or
b. In case of warrantless arrest, submit to
the public prosecutor, the inventory
report, photographs, representative
samples,
and
other
pertinent
documents within 5 days from date of
seizure.
3. Upon motion by any interested party, the
court may direct the auction sale of seized
items, equipment, paraphernalia, tools or
instruments of the crime.
- After hearing, the court shall fix the
minimum bid price based on the
recommendation of the concerned
government agency.
- The sheriff shall conduct the auction.
4. The auction sale shall be with notice to
the accused, the person from whom the
items were seized, or the owner thereof
and the concerned government agency.
5. The notice of auction shall be posted in 3
conspicuous places in the city or
municipality where the items, equipment,
paraphernalia, tools, or instruments of the
crime were seized. (publication)
6. The proceeds shall be held in trust and
deposited with the government depository
REMEDIAL LAW
e. Bail
Where filed
Bail in the amount fixed may be filed:
a. With the court where the case is pending,
or
b. In the absence or unavailability of the
judge, with any regional trial judge,
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
province, city, or municipality.
c. In the RTC of the place where the accused
was arrested if he was arrested in a place
other than where the place was pending, or
d. If no judge is available therein, with any
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge
therein. [Sec. 1, Rule 14]
Hold departure order
If the court grants bail, the court may issue a
HDO in appropriate cases. [Sec. 1, Rule 14]
Duties of the court
Before granting the application for bail, the
judge must:
a. Read the information in a language known
to and understood by the accused, and
b. Require the accused to sign a written
undertaking, as follows:
i.
To appear before the court that
issued the warrant of arrest for
arraignment purposes on the date
scheduled and if the accused fails to
appear, without justification on the
date of arraignment, accused waives
the reading of the information and
authorizes the court to enter a plea of
not guilty on behalf of the accused and
to set the case for trial;
ii.
To appear whenever required by the
court where the case is pending; and
iii.
To waive the right of the accused to be
present at trial, and upon failure of
the accused to appear without
justification and despite due notice,
the trial may proceed in absentia.
[Sec. 2, Rule 14]
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f. Arraignment and Plea
Arraignment
The court shall set the arraignment of the
accused within 15 days from the time it
acquires jurisdiction over the accused.
Note: Notice shall be given to the public
prosecutor, and offended party or concerned
government agency that the court will entertain
plea bargaining on the date of the arraignment.
[Sec. 1, Rule 15]
Plea-bargaining
Where there is an agreement to the plea
offered by the accused, the court shall:
a. Issue an order which contains the pleabargaining arrived at;
b. Proceed to receive evidence on the civil
aspect of the case, if any; and
c. Render and promulgate judgment of
conviction, including the civil liability for
damages. [Sec. 2, Rule 15]
g. Pre-trial
Setting of pre-trial conference
After the arraignment, the court shall set pretrial within 30 days.
Note: The court may refer the case to the COC,
if warranted, for preliminary conference to be
set at least 3 days prior to pre-trial. [Sec. 1,
Rule 16]
Manner of pre-trial
- All questions or statements must be
directed to the court. [Sec. 4, Rule 16]
- All agreements or admissions shall be
reduced in writing and signed by the
accused and counsel; otherwise, they
cannot be used against the accused.
Note: The agreements covering matters
referred to in Sec 1, Rule 118 of the ROC
shall be approved by the court. [Sec. 5,
Rule 16]
- All proceedings during pre-trial shall be:
a. Recorded,
b. The transcripts prepared, and
c. The minutes signed by the parties or
their counsels. [Sec. 6, Rule 16]
REMEDIAL LAW
Pre-trial order
The court shall issue a pre-trial order within 10
days after termination of the pre-trial, setting
forth:
a. The actions taken during the pre-trial
conference,
b. The facts stipulated,
c. The admissions made,
d. The evidence marked,
e. The number of witnesses to be presented,
and
f. The schedule of trial.
The order shall bind the parties and control
the course of action during the trial. [Sec. 7,
Rule 16]
h. Trial
Continuous trial
The court shall endeavor to conduct
continuous trial which shall not exceed 3
months from the date of issuance of the pretrial order. [Sec. 1, Rule 17]
Note: Pro bono lawyers will be provided to the
accused if he cannot afford the services of
counsel or if there is no available public
attorney. [Sec. 5, Rule 17]
Affidavits
Affidavit in lieu of direct examination shall be
used, subject to cross-examination and the
right to object to inadmissible portions of the
affidavit. [Sec. 2, Rule 17]
Memoranda
The court may require the parties to submit
their respective memoranda within 30 days
from the date the case is submitted for
decision.
Note: If possible, the memoranda shall be in
electronic form. [Sec. 3, Rule 17]
Decision
The court shall have 60 days to decide the case
counted from the last day of the 30-day period
to file the memoranda.
Note: This rule shall apply with or without
memoranda filed. [Sec. 3, Rule 17]
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b. Documentary Evidence
The court shall dispose of the case within 10
months from the date of arraignment. [Sec. 4,
Rule 17]
i. Subsidiary Liabilities
The court may enforce subsidiary liability
against a person or corporation subsidiarily
liable under Art 102, 103 of the RPC when:
a. The accused is convicted,
b. Subsidiary liability is allowed by law, and
c. A motion was filed by the person entitled
to recover under judgment. [Sec. 1, Rule
18]
5. Evidence
a. Precautionary Principle
Definition
The principle states that when human activities
may lead to threats of serious and irreversible
damage to the environment that is scientifically
plausible but uncertain, actions shall be taken
to avoid or diminish that threat. [Sec. 3(f), Rule
1]
Applicability
The court shall apply the precautionary
principle in resolving the case before it when
there is a lack of full scientific certainty in
establishing a causal link between human
activity and environmental effect. [Sec. 1, Rule
20]
Standards for application
In applying the principle, the following factors
may be considered:
a. Threats to human life or health;
b. Inequity to present or future generations; or
c. Prejudice to the environment without legal
consideration of the environmental rights of
those affected.
Note: The factors enumerated are not
exclusive. [Sec. 2, Rule 20]
Photographic, video, and similar evidence
Photographs, videos, and similar evidence of
events, acts, transactions of wildlife, wildlife
byproducts or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by:
a. The person who took the same,
b. Some other person present when said
evidence was taken, or
c. Any other person competent to testify on
the accuracy thereof. [Sec. 1, Rule 21]
Entries in official records
Entries in official records are prima facie
evidence of the facts stated therein when it is
made by
a. A public officer in the performance of his
duty, or
b. A person in performance of a duty specially
enjoined by law. [Sec. 2, Rule 21]
M. ALTERNATIVE
DISPUTE RESOLUTION
R.A. 9285: “The Alternative Dispute Resolution
Act of 2004” institutionalized the use of
alternative modes of dispute resolution in the
Philippines.
Note: It did not repeal, amend, or modify the
jurisdiction of the Katarungang Pambarangay
under the LGC. [1 Riano 672, 2016 edition]
ADR is meant to serve as an efficient tool and
an alternative procedure for the resolution of
appropriate cases. RA 9285 shall be without
prejudice to the adoption by the SC of any ADR
system, such as mediation, conciliation,
arbitration, or any combination thereof as a
means of achieving speedy and efficient
means of resolving cases pending before the
courts. [Sec. 2, R.A. 9285]
Note: The current rules on civil procedure
mandate Court-Annexed Mediation and
Judicial Dispute Resolution, when deemed
necessary by the court.
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1. Types Of Processes And
Procedures
In
Adr;
Comparison
With
CourtAnnexed Mediation
ADR system
The ADR system refers to any process or
procedure used to resolve a dispute or
controversy, other than by adjudication of a
presiding judge of a court or an officer of a
government agency.
It is a system in which a neutral 3rd-party
participates to assist in the resolution of
issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial,
or any combination thereof. [Sec. 3(a), R.A.
9285]
ADR processes
a. Arbitration - a voluntary dispute resolution
process in which one or more arbitrators,
appointed in accordance with the
agreement of the parties, or rules
promulgated pursuant to this Act, resolve a
dispute by rendering an award.
b. Court-referred mediation - a mediation
ordered by a court to be conducted in
accordance with the agreement of the
parties when an action is prematurely
commenced in violation of such
agreement.
c. Early neutral evaluation - An ADR
process wherein parties and their lawyers
are brought together early in a pre-trial
phase to present summaries of their cases
and receive a nonbinding assessment by
an experienced neutral person, with
expertise in the subject in the substance of
the dispute.
d. Mediation - A voluntary process in which a
mediator, selected by the disputing parties,
facilitates communication and negotiation,
and assists the parties in reaching a
voluntary agreement regarding a dispute.
e. Mediation-Arbitration - A step dispute
resolution process involving both mediation
and arbitration; also known as Med-Arb.
[Sec. 3, R.A. 9285]
REMEDIAL LAW
The parties may agree to refer issues arising
from a dispute or during its pendency to other
forms of ADR such as but not limited to:
a. Evaluation of a third-person,
b. Mini-trial,
c. Mediation-arbitration, or
d. A combination thereof. [Sec. 18, R.A. 9285]
Court-annexed mediation
It is a mediation process conducted under the
auspices of the court, after such court has
acquired jurisdiction of the dispute.
[Sec. 3, R.A. 9285]
Note: Court-annexed mediation is now
mandatory after pre-trial under the amended
rules.
2. Domestic Arbitration
Domestic arbitration means an arbitration that
is not international as defined in the Model Law
International arbitration as defined by the
Model Law
An arbitration is international if:
a. The parties to an arbitration agreement
have, at the time of the conclusion of that
agreement, their places of business in
different States.; or
b. One of the following places is situated
outside the State in which the parties have
their place of business:
i.
The place of arbitration if determined
in, or pursuant to, the arbitration
agreement;
ii.
Any place where a substantial part of
the obligations of the commercial
relationship is to be performed or the
place with which the subject-matter of
the dispute is most closely connected;
or
iii.
The parties have expressly agreed that
the subject-matter of the arbitration
agreement is related to more than one
country.
Governing Law
Domestic arbitration shall continue to be
governed by R.A. 876: “The Arbitration Law” as
amended by chapter 5 of R.A. 9285. [Sec. 32,
R.A. 9285]
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Note: Articles 8, 10-14, 18, 19, and 29-31 of the
Model law and Sec 22-31 of Chapter 4 on
International Commercial Arbitration shall
apply to Domestic Arbitration. [Sec. 33, R.A.
9285]
3. Judicial Review of Arbitral
Awards
DOMESTIC AWARDS
Confirmation
The confirmation of a domestic arbitral award
shall be governed by Sec. 23 of R.A. 876. [Sec.
40, R.A. 9285]
At any time within 1 month after the award is
made, any party to the controversy which was
arbitrated may apply to the RTC for an order
confirming the award.
The court must grant such order in accordance
with the rules to be promulgated by the SC
unless the award is vacated, modified, or
corrected. [Sec. 23, R.A. 876 and Sec. 40, R.A.
9285]
Note: Notice of such motion must be served by
law for the service of such notice upon an
attorney-in-action in the same court. [Sec. 23,
R.A. 876]
A
Construction
Industry
Arbitration
Commission arbitral award need not be
confirmed by the RTC to be executory. [Sec.
40, R.A. 9285]
Execution
A domestic arbitral award, when confirmed,
shall be enforced in the same manner as final
and executory decisions of the RTC. [Sec. 40,
R.A. 9285]
Rejection
A party to a domestic arbitration may question
the arbitral award with the appropriate RTC in
accordance with the rules promulgated by the
SC. [Sec. 41, R.A. 9285]
It may only be questioned on the following
grounds:
REMEDIAL LAW
a. There was an evident miscalculation of
figures, or an evident mistake in the
description of any person, thing, or
property referred to in the award; or
b. The arbitrators have awarded upon a
matter not submitted to them, not affecting
the merits of the decision upon the matter
submitted; or
c. The award is imperfect in a matter of form
not affecting the merits of the controversy,
and if it had been a commissioner’s report,
the defect could have been amended or
disregarded by the court.
[Sec. 41, R.A. 9285 and Sec. 25, R.A. 876]
FOREIGN ARBITRAL AWARDS
Recognition and enforcement
The New York Convention shall govern the
recognition and enforcement of arbitral awards
covered by such convention. [Sec. 42, R.A.
9285]
The recognition and enforcement of such
awards:
a. Shall be filed with the RTC,
b. In accordance with the rules promulgated
by the SC.
- The rules shall provide that the party
relying on the award or applying for its
enforcement shall file with the court an
original copy of the award or
arbitration agreement.
- Note: if it is not in any of the official
languages, the party shall supply a
duly certified translation.
c. The applicant shall establish that the
country in which the foreign arbitration
award was made if a party to the New York
Convention.
[Sec. 42, R.A. 9285]
When there is an application for rejection or
suspension of enforcement of the award, the
RTC may:
a. Vacate its decision, and
b. On application of the party claiming
recognition or enforcement, order the party
to provide appropriate security.
[Sec. 42, R.A. 9285]
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Arbitral awards not covered by the New
York Convention
The Court may, on the grounds of comity and
reciprocity, recognize and enforce a nonconvention award as a convention award. [Sec.
43, R.A. 9285]
Foreign arbitral awards not a foreign
judgment
A foreign arbitral award when confirmed by a
court of a foreign country, shall be recognized
and enforced as a foreign arbitral award and
not a judgment of a foreign court. [Sec. 44, R.A.
9285]
A foreign arbitral award, when confirmed by the
RTC, shall be enforced as a foreign arbitral
award and not as a judgment of a foreign court.
It shall be enforced in the same manner as final
and executory decisions of courts of law in the
Philippines. [Sec. 44, R.A. 9285]
Rejection
A party to a foreign arbitration proceeding may
oppose an application for recognition and
enforcement of the arbitral award in
accordance with the rules to be promulgated by
the SC.
4. Appeal From Court Decisions
On Arbitral Awards
Appeal
A decision of the RTC confirming, vacating,
setting aside, modifying, or correcting an
arbitral award may be appealed to the CA in
accordance with the rules to be promulgated by
the SC. [Sec. 46, R.A. 9285]
Bond
The appellant must post a counterbond
executed in favor of the prevailing party equal
to the amount of the award in accordance with
the rules to be promulgated by the SC. [Sec.
46, R.A. 9285]
REMEDIAL LAW
VENUE AND JURISDICTION
Nature and venue
Proceedings for recognition and enforcement,
vacation and setting aside, correction, or
modification of an arbitral award, and any
application for arbitral assistance and
supervision, shall be deemed as special
proceedings and shall be filed with the RTC:
a. Where
arbitration
proceedings
are
conducted;
b. Where the asset to be attached or levied
upon, or the act to be enjoined is located;
c. Where any of the parties to the dispute
resides or has his place of business; or
d. In the national judicial capital region, at the
option of the applicant.
[Sec. 47, R.A. 9285]
Notice of proceedings
Where
The court shall send notice to the parties at
their address of record in the arbitration or at
the party’s last known address if he cannot be
served at such address. [Sec. 48, R.A. 9285]
When
The notice shall be sent at least 15 days before
the date set for the initial hearing of the
application. [Sec. 48, R.A. 9285]
5. Special Rules Of Court on
ADR
[AM No. 07-11-08-SC]
Nature
All proceedings under the Special ADR Rules
are special proceedings. [Sec. 2, Rule 1]
a. Subject Matter
The Special ADR Rules shall apply to and
govern the following cases:
a. Relief on the issue of existence, validity, or
enforceability of the arbitration agreement;
b. Referral to ADR;
c. Interim measures of protection;
d. Appointment of arbitrator;
e. Challenge to appointment of arbitrator;
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f. Termination of mandate of arbitrator;
g. Assistance in taking evidence;
h. Confirmation, correction, or vacation of
award in domestic arbitration;
i. Recognition and enforcement or setting
aside of an award in international
commercial arbitration;
j. Recognition and enforcement of a foreign
arbitral award;
k. confidentiality/ protective orders; and
l. Deposit and enforcement of mediated
settlement agreements. [Sec. 1, Rule 1]
b. Summary
Proceedings
Certain Cases
in
The proceedings in the following instances are
summary in nature:
a. Judicial relief involving the issue of
existence, validity, or enforceability of the
arbitration agreement;
b. Referral to ADR;
c. Interim measures for protection;
d. Appointment of arbitrator;
e. Challenge to appointment of arbitrator;
f. Termination of mandate of arbitrator;
g. Assistance in taking evidence;
h. Confidentiality/ protective orders; and
i. Deposit and enforcement of mediated
settlement agreements.
[Sec. 3, Rule 1]
Service and filing of petition
The petitioner shall serve a copy of the petition
on the respondent before the filing thereof:
a. By personal service
b. By courier
Proof of service shall be attached to the petition
filed in court.
Mode of
Proof of service
service
Affidavit of the person who
Personal
effected service, stating the
service
time, place, and manner of the
service of the respondent.
Service by
Signed courier proof of delivery
courier
REMEDIAL LAW
Note: If service is refused or has failed, the
affidavit or delivery receipt must state the
circumstances of the attempted service and
refusal or failure thereof.
[Sec. 3(A), Rule 1]
Notice
General Rule:
If the court finds the petition sufficient in form
and substance, it shall send notice to the
parties containing:
a. A directive to appear at a particular time
and date for hearing
- Hearing shall be set no later than 5
days from the lapse of the period for
filing the opposition or comment.
b. A statement allowing him to file a comment
or opposition to the petition within 15 days
from receipt of notice
Exception: Cases involving referral to ADR or
confidentiality/protection orders.
Such motion shall be set for hearing by the
movant and contain a notice of hearing that
complied with the requirements under Rule 15
of the ROC motions.
[Sec. 3(B), Rule 1]
Summary hearing
In all cases, as far as practicable, the summary
hearing:
a. Shall be conducted in 1 day, and
b. Only for the purposes of clarifying facts.
Note: Except in cases involving referral to ADR
or Confidentiality/protective orders, it shall be
the court that sets the hearing within 5 days
from the lapse of the period for filing opposition
or comment.
[Sec. 3(C), Rule 1]
Resolution
The court shall resolve the matter within 30
days from the day of the hearing. [Sec. 3(D),
Rule 1]
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c. Prohibited Submissions
The following pleadings, motions, or petitions
shall not be allowed in the cases governed by
the Special ADR Rules and shall not be
accepted for filing by the COC:
a. Motion to dismiss;
b. Motion for bill of particulars;
c. Motion for new trial or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension, except in cases
where an ex-parte temporary order of
protection has been issued;
f. Rejoinder to reply;
g. Motion to declare a party in default; and
h. Any other pleading specifically disallowed
under any provision of the Special ADR
Rules.
[Sec. 6, Rule 1]
Court action
The court shall motu proprio order a
pleading/motion that it has determined to be
dilatory in nature, be expunged from the
records. [Sec. 6, Rule 1]
d. Judicial Relief Involving the
Issue of Existence, Validity, and
Enforceability of Arbitration
Agreements
When available
Judicial relief under Rule 3 of the Special ADR
Rules, whether resorted to before or after
commencement of arbitration, shall apply only
when the place of arbitration is in the
Philippines. [Sec. 1, Rule 3]
JUDICIAL
RELIEF
BEFORE
COMMENCEMENT OF ARBITRATION
Who may file
Any party to an arbitration agreement may
petition the appropriate court to determine any
question concerning the existence, validity,
and enforceability of such arbitration
agreement, serving a copy on the respondent.
[Sec. 2, Rule 3]
REMEDIAL LAW
When filed
The petition may be filed at any time prior to
the commencement of arbitration.
Note: Despite the pendency of the petition,
arbitral proceedings may be commenced
and continue to the rendition of an award.
[Sec. 3, Rule 3]
The petition may not be commenced when
the existence, validity, enforceability of an
arbitration agreement has been raised as one
of the issued in a prior action before the same
or another court. [Sec. 9, Rule 3]
Where filed
The petition may be filed before the RTC of the
place where any of the petitioners or
respondents has his principal place of business
or residence. [Sec. 4, Rule 3]
Grounds
A petition may be granted only if it is shown that
the arbitration agreement is, under the
applicable law:
a. Invalid,
b. Void,
c. Unenforceable, or
d. Inexistent.
[Sec. 5, Rule 3]
Contents of the petition
The verified petition shall state the following:
a. The facts showing that the persons names
as petitioner or respondent have legal
capacity to be sued;
b. The nature and substance of dispute
between the parties;
c. The grounds and circumstances relied
upon by the petitioner to establish position;
d. The reliefs sought.
Aside from other submissions, the petitioner
must also attach an authentic copy of the
arbitration agreement. [Sec. 6, Rule 3]
When the petitioner also applies for an interim
measure of protection, he must also comply
with the requirements for the application of
such interim measure of protection. [Sec. 10,
Rule 3]
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Comment/Opposition
The comment/opposition of the respondent
must be filed within 15 days from service of
the petition. [Sec. 7, Rule 3]
Court action
The court must exercise judicial restraint and
defer to the competence or jurisdiction of the
arbitral tribunal to rule on its incompetence or
jurisdiction. [Sec. 8, Rule 3]
Relief against court action
A prima facie determination by the court
upholding
the
existence,
validity,
or
enforceability of an arbitration agreement shall
not be subject to a motion for
reconsideration, appeal, or certiorari.
Such determination, however, will not prejudice
the right of any party to raise the issue of
existence, validity, and enforceability of the
arbitration agreement before the arbitral
tribunal or the court in an action to vacate or
set aside the arbitral award.
- In this case, the court is no longer limited
to a mere prima facie determination of the
issues, but shall be a full review of such
issues with due regard to the standard for
review for arbitral awards prescribed in the
Special ADR Rules. [Sec. 11, Rule 3]
JUDICIAL RELIEF AFTER ARBITRATION
COMMENCES
Who may file
Any party to arbitration may petition the
appropriate court for judicial relief from the
ruling of the arbitral tribunal on a preliminary
question upholiding or declining its jurisdiction.
Note: If the ruling of the arbitral tribunal is
reversed by the court, the parties shall be free
to replace the arbitrators or any one of them
in accordance with the rules that were
applicable for the appointment of the arbitrator
sought to be replaced. [Sec. 12, Rule 3]
Arbitral tribunal
The arbitral tribunal is only a nominal party
and the court shall not require the tribunal to
submit any pleadings or written submissions.
REMEDIAL LAW
The court may consider the same should the
tribunal participate in the proceedings. [Sec.
22, Rule 3]
When filed
The petition may be filed within 30 days after
having received notice of that ruling by the
arbitral tribunal. [Sec. 13, Rule 3]
Where filed
The petition may be filed before the RTC of the
place where arbitration is taking place, or
where any of the petitioners or respondents
has his principal place of business or
residence. [Sec. 14, Rule 3]
Grounds
The petition may be granted when the court
finds that the arbitration agreement is:
a. Invalid,
b. Inexistent, or
c. unenforceable
As a result of which, the arbitral tribunal has
no jurisdiction to resolve the dispute. [Sec.
15, Rule 3]
When petition not allowed
Where the arbitral tribunal defers its ruling on
preliminary questions regarding its jurisdiction
until its final award, the aggrieved party
cannot seek judicial relief. He must await the
final arbitral award before seeking judicial
recourse. [Sec. 20, Rule 3]
A ruling by the arbitral tribunal deferring
resolution on the issue of its jurisdiction until
final award, shall not be subject to MR, appeal,
or a petition for certiorari. [Sec. 20, Rule 3]
Contents of the petition
The petition shall state the following:
a. The facts showing that the persons names
as petitioner or respondent have legal
capacity to be sued;
b. The nature and substance of dispute
between the parties;
c. The grounds and circumstances relied
upon by the petitioner to establish position;
d. The reliefs sought.
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Aside from other submissions, the petitioner
must also attach an authentic copy of the
arbitration agreement. [Sec. 16, Rule 3]
Note: The arbitrators shall be impleaded as
nominal parties to the case and shall be notified
of the progress of the case. [Sec. 16, Rule 3]
Comment/Opposition
The comment/opposition of the must be filed
within 15 days from service of the petition.
[Sec. 17, Rule 3]
REMEDIAL LAW
If the arbitral tribunal renders a final arbitral
award and the court has not rendered a
decision on the petition from the tribunal’s
preliminary ruling affirming its jurisdiction, then
the petition shall be ipso facto moot and
academic and shall be dismissed by the
RTC.
Note: The dismissal shall be without prejudice
the right of the aggrieved party to raise the
same issue in a petition to vacate or set aside
the award. [Sec. 21, Rule 3]
e. Interim Measures of Protection
Court action
The court shall render judgment on the basis
of the pleadings filed and the evidence
submitted by the parties, within 30 days from
the time the petition is submitted for resolution.
Note: The court shall not enjoin the arbitration
proceedings and judicial recourse to the court
shall not prevent the tribunal from
continuing proceedings and rendering its
award. [Sec. 18, Rule 3]
Dismissal of petition
The court shall dismiss the petition if:
a. It fails to comply with the required contents
for the petition, or
b. If upon consideration or the grounds
alleged and the legal briefs submitted, the
petition does not appear to be prima facie
meritorious. [Sec. 18, Rule 3]
Relief against court action
The aggrieved party may file a MR of the order
of the court.
The decision of the court shall not be subject
to appeal.
[Sec. 19, Rule 3]
The ruling of the court affirming the arbitral
tribunal’s jurisdiction shall not be subject to a
petition for certiorari. But if the court rules that
the arbitral tribunal has no jurisdiction, such
ruling may be the subject of a petition for
certiorari. [Sec. 19, Rule 3]
Rendition of arbitral award before court
decision on petition from arbitral tribunal’s
preliminary ruling on jurisdiction
Who may ask for interim measures of
protection
A party to an arbitration agreement may
petition the court for interim measures of
protection. [Sec. 1, Rule 5]
When to petition
A petition for an interim measure of protection
may be made:
a. Before arbitration is commenced,
b. After arbitration is commenced, but before
the constitution of the arbitral tribunal, or
c. After the constitution of the arbitral tribunal
and at any time during arbitral proceedings.
- During this time, the interim measure
of protection shall only be to the extent
that the arbitral tribunal has no power
to act or is unable to act effectively.
[Sec. 2, Rule 5]
Where to file
A petition for an interim measure of protection
may be filed with the RTC, which has
jurisdiction over any of the following places:
a. Where the principal place of business of
any of the parties to the arbitration is
located;
b. Where any of the parties who are
individuals resides;
c. Where any of the acts sought to be
enjoined are being performed, threatened
to be performed, or not being performed; or
d. Where the real property subject of
arbitration, or a portion thereof is situated.
[Sec. 3, Rule 5]
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Grounds
The following grounds, indicate the nature of
the reasons that the court shall consider in
granting the relief:
a. The need to prevent irreparable loss or
injury;
b. The need to provide security for the
performance of any obligation;
c. The need to produce or preserve evidence;
d. The need to compel any other appropriate
act or omission.
Note: The grounds enumerated shall not limit
the reasons for the court to grant an interim
measure of protection. [Sec. 4, Rule 5]
Contents of the petition
The verified petition must state the following:
a. The fact that there is an arbitration
agreement;
b. The fact that the arbitral tribunal has not
been constituted, or if constituted, is
unable to act or would be unable to act
effectively;
c. A detailed description of the appropriate
relief sought;
d. The grounds relied on for the allowance of
the petition.
The petitioner must also attach an authentic
copy of the arbitration agreement. [Sec. 5, Rule
5]
Interim measures that may be granted
The following, among others, are the interim
measures of protection that a court may grant:
a. Preliminary injunction directed against a
party to arbitration;
b. Preliminary attachment against property or
garnishment of funds in the custody of a
bank or 3rd person;
c. Appointment of a receiver;
d. Detention, preservation, delivery, or
inspection of property; or
e. Assistance in the enforcement of an interim
measure of protection granted by the
arbitral tribunal, which the latter cannot
enforce effectively. [Sec. 6, Rule 5]
Ex parte temporary order of protection
Grounds
a. The petitioner alleges that there is an
urgent need to:
REMEDIAL LAW
i.
ii.
Preserve property,
Prevent
the
respondent
from
disposing or concealing the property,
or
iii.
Prevent the relief prayed for from
becoming illusory because of prior
notice.
b. The court finds that the reasons given are
meritorious.
In such instances, the court shall issue an
immediately executory temporary order of
protection and require the petitioner within 5
days from receipt to post a bond to answer for
any damage that the respondent may suffer as
a result of the order. [Sec. 9, Rule 5]
Note: Prior notice to the other party shall not be
necessary. [Sec. 7, Rule 5]
The temporary order of protection shall be
valid only for 20 days from the service on the
party required to comply with the order. Within
such period, the court shall:
a. Furnish the respondent of a copy of the
petition and a notice requiring him to
comment on or before the day the petition
will be heard; and
b. Notify the parties that the petition shall be
heard on a day specified in the notice,
which must not be beyond the 20 day
period.
The respondent may have the option of having
the order lifted by posting a counter-bond.
The court may extend the period of validity of
the order for no more than 20 days from
expiration of the original period, if
a. The respondent requests the court of:
i.
An extension of the period to file an
opposition/comment, or
ii.
To reset the hearing to a later date.
b. The request is granted by the court.
[Sec. 9, Rule 5]
Comment/Opposition
The comment or opposition must be filed
within 15 days from service of the petition and
must state why the interim measure for
protection should not be granted. [Sec. 8, Rule
5]
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If the parties fail to file their opposition, the
court shall motu proprio render judgment:
a. On the basis of the allegations in the
petition that are substantiated by
supporting documents, and
b. Limited to what is prayed for. [Sec. 9, Rule
5]
Court action
General rule: The court shall defer action on
any pending petition for an interim measure of
protection upon being informed that an arbitral
tribunal has been constituted.
Exception: The court may act upon such
petition if the petitioner establishes that:
a. The tribunal has no power to act on the
interim measure of protection, or
b. The tribunal is unable to act on it
effectively.
[Sec. 15, Rule 5]
After hearing, the court shall resolve the matter
within 30 days:
a. From submission of the opposition, or
b. Upon lapse of the period to file the same,
or
c. From termination of the hearing set by the
court if there is a need for clarification or
further argument.
[Sec. 9, Rule 5]
After notice and hearing, the court may either
grant or deny the petition for an interim
measure of protection.
- Such order must indicate that it is issued
without prejudice to subsequent grant,
modification, amendment, revision, or
revocation by an arbitral tribunal. [Sec. 9,
Rule 5]
- The order shall be immediately executory.
[Sec. 10, Rule 5]
- The order may be conditioned upon the
provision of security, performance of an
act or omission. [Sec. 12, Rule 5]
- The order granted or denied is without
prejudice
to
subsequent
grant,
modification, amendment, revision, or
revocation by the arbitral tribunal. [Sec. 5,
Rule 5]
REMEDIAL LAW
Relief against court action
The order may be the subject of a MR, and/or
appeal, or a petition for certiorari. [Sec. 10,
Rule 5]
Interim measure of protection by arbitral
tribunal
The interim measure of protection issued by
the arbitral tribunal shall, upon its issuance, be
deemed to have ipso jure modified, amended,
revised, or revoked one previously issued by
the court to the extent that it is inconsistent with
the one issued by the tribunal. [Sec. 13, Rule
5]
The court may not change the security ordered
by the arbitral tribunal. [Sec. 12, Rule 5]
The court shall assist in the enforcement of an
interim measure of protection issued by the
arbitral tribunal. [Sec. 16, Rule 5]
The court shall not deny an application for
assistance in implementing or enforcing an
interim measure of protection issued by an
arbitral tribunal on the following grounds:
a. The tribunal granted the relief ex parte;
b. The party opposing the application found
new material evidence, which the tribunal
had not considered in granting the
application and if considered, may produce
a different result; or
- If there is sufficient merit in the
opposition of the application based on
this ground, the court shall refer the
matter back to the arbitral tribunal
c. The measure of protection ordered by the
tribunal amends, revoked, modifies, or is
inconsistent with an earlier measure of
protection issued by the court. [Sec. 11,
Rule 5]
Conflict or inconsistency between the
interim measure of protection issued by the
court and the arbitral tribunal
Any question involving conflict or inconsistency
shall be immediately referred by the court to
the arbitral tribunal which shall have the
authority to decide such question. [Sec. 14,
Rule 5]
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f. Enforcement and Recognition
or Setting Aside of an
International
Commercial
Arbitral Award
Note: Recourse to a court against an arbitral
award shall be made only through a petition to
set aside the arbitral award and on the grounds
prescribed by law. Any other recourse such as
by appeal, petition for review, or petition for
certiorari shall be dismissed by the court. [Sec.
5, Rule 12]
Who may file
A party to an international commercial
arbitration in the Philippines, may petition the
proper court to recognize and enforce or set
aside an arbitral award. [Sec. 1, Rule 12]
When to file
1. Petition to recognize and enforce [Sec.
2(A), Rule 12]
- May be filed anytime from receipt of
award
- However, if a petition to set aside has
been filed, the opposing party must file
therein if it is not yet time-barred. [Sec.
6, Rule 12]
2. Petition to set aside [Sec. 2(B), Rule 12]
- May only be filed within 3 months from
the time the petitioner receives a copy
of the arbitral award. Or from the time
he received the resolution by the arbitral
award of a request for correction,
interpretation, or additional award.
- Note: The dismissal of a petition to set
aside an arbitral award shall not
automatically result in the approval of
the petition or opposition for recognition
and enforcement of the award.
- Failure to file a petition to set aside,
shall preclude a party from raising
grounds to resist enforcement of the
award.
Where to file
The petition may, at the option of the petitioner,
be filed with the RTC:
a. Where arbitration proceedings were
conducted;
REMEDIAL LAW
b. Where any of the assets to be attached or
levied upon is located;
c. Where the act to be enjoined will be or is
being performed;
d. Where any of the parties to the arbitration
resides or has its place of business; or
e. In the national capital judicial region. [Sec.
3, Rule 12]
Form and contents
The application shall be verified by a person
who has personal knowledge of the facts state.
[Sec. 6, Rule 12]
1. Petition to recognize and enforce shall
state the following:
a. The addresses of record, or any change
thereof, of the parties to arbitration;
b. A statement that the arbitration
agreement or submission exists;
c. The names of the arbitrators and proof of
their appointment;
d. A statement that an arbitral award was
issued and when the petitioner received
it; and
e. The relief sought.
Apart from other submissions, the
petitioner shall attach to the petition the
following:
a. An authentic copy of the arbitration
agreement;
b. An authentic copy of the arbitral
award;
c. A verification and certification against
forum shopping; and
d. An authentic copy or authentic copies
of the appointment of an arbitral
tribunal.
2. Petition to set aside
- Shall have the same contents as a
petition to recognize and enforce
- In addition, the petition should state the
grounds relied upon to set it aside.
In either case, if another court was previously
requested to resolve and/or has resolved, on
appeal, the arbitral tribunal’s preliminary
determination in favor of its own jurisdiction,
the petitioner shall apprise the court. [Sec. 7,
Rule 12]
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Notice
If the petition is sufficient in form and
substance, the court shall cause notice and a
copy of the petition to be delivered to the
respondent.
- It shall direct the respondent to file an
opposition within 15 days from receipt or
to file a petition to set aside in
opposition to a petition to recognize and
enforce or a petition to recognize and
enforce in opposition to a petition to set
aside. [Sec. 8, Rule 12]
Grounds to set aside or resist enforcement
The court may set aside or refuse the
enforcement of the arbitral award only if:
a. The petitioner furnishes proof that:
i.
A party to the arbitration agreement was
under some incapacity, or the said
agreement is not valid under the law to
which the parties have subjected it or,
failing any indication thereof, under
Philippine law;
ii.
The party making the application to set
aside or resist enforcement was not
given proper notice of the appointment
of an arbitrator or of the arbitral
proceedings or was otherwise unable to
present his case;
iii.
The award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration, or
contains decisions on matters beyond
the scope of the submission to
arbitration;
- If the decisions on the matters
are separable, only that part of
the award which contains
decisions on matters not
submitted may be set aside.
iv.
The composition of the arbitral tribunal
or the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of Philippine law
from which the parties cannot derogate,
or, failing such agreement, was not in
accordance with Philippine law.
REMEDIAL LAW
b. The court finds that:
i.
The subject-matter of the dispute is not
capable of settlement by arbitration
under the Philippine law; or
ii.
The recognition or enforcement of the
award would be contrary to public
policy.
Note: The grounds enumerated are exclusive.
[Sec. 4, Rule 12]
Party is a minor/incompetent
The petition to set aside on the ground that a
party was a minor or an incompetent, shall be
filed only on behalf of the minor or incompetent
and shall allege that:
a. The other party had knowingly entered into
a submission or agreement with such
minor/incompetent, or
b. The submission to arbitration was made by
a guardian who was not authorized to do
so by a competent court. [Sec. 4, Rule 12]
Submission of documents
1. If the court finds that the issue between the
parties is mainly one of law
- The parties may be required to submit
briefs of legal arguments within 15
days from receipt of order.
2. If the court finds that there are issued of
facts relating to the grounds to set aside
- The parties shall be required to submit
affidavits of all their witnesses within 15
days from receipt of order and reply
affidavits within 10 days from receipt of
the affidavits to be replied to.
- The documents relied upon shall be
attached to the affidavits.
[Sec. 9, Rule 12]
Hearing
If the court finds that there is a need to conduct
an oral hearing based on the petition,
opposition, and affidavits, the court shall set
the case for hearing.
- The affidavits shall take the place of direct
testimonies and shall be immediately
subject to cross-examination.
Note: This case shall have preference over
other cases before the court, except criminal
cases. [Sec. 10, Rule 12]
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Suspension of proceedings in a petition to
set aside
The court may suspend the proceedings when
appropriate and upon request by a party to:
a. Give the tribunal an opportunity to resume
the arbitral proceedings, or
b. Take such action as in the arbitral tribunal’s
opinion will eliminate the grounds for
setting aside, or
c. When there is a pending appeal as to the
preliminary ruling of an arbitral tribunal
affirming its jurisdiction.
Note: The court is not allowed to direct the
tribunal to reverse its award, revise its findings,
or otherwise encroach upon the independence
of the tribunal. [Sec. 11, Rule 12]
Presumption in favor of confirmation
It is presumed that an arbitral award:
a. Was made and released in due course,
and
b. Is subject to enforcement by the court.
Unless, the adverse party is able to establish a
ground for setting aside or not enforcing the
award. [Sec. 12, Rule 12]
Judgment of the court
Petition to set aside
- Unless the ground to set aside the award is
fully established, the court shall dismiss the
petition.
- If there is also a petition to recognize and
enforce filed in opposition to the petition to
set aside, the court shall recognize and
enforce the award.
Note: In resolving the petition, the court
shall either set aside or enforce the
arbitral award and shall not disturb the
tribunal’s determination of facts and/or
interpretation of law. [Sec. 13, Rule 12]
Costs
The prevailing party shall be entitled to an
award of costs.
The petitioner shall submit a statement under
oath confirming the costs (including attorney’s
fees) he has incurred in the proceedings for
recognition and enforcement or setting aside.
Unless otherwise agreed upon by the parties in
writing. [Sec. 14, Rule 12]
REMEDIAL LAW
g. Recognition and Enforcement
of a Foreign Arbitral Award
Governing law
The recognition and enforcement of a foreign
arbitral award shall be governed by the 1958
New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards and
this Rule (Rule 13).
When country not a signatory to the New
York Convention
The court may, upon grounds of comity and
reciprocity, recognize and enforce a foreign
arbitral award made in a country that is not a
signatory to the New York Convention. [Sec. 4,
Rule 13]
- Only when such country extends comity
and reciprocity to awards made in the
Philippines. If not, the court may
nevertheless treat such award as a foreign
judgment enforceable as such under Sec
48, Rule 39 of the ROC. [Sec. 12, Rule 13]
Who may file
Any party to a foreign arbitration may petition
the court to recognize and enforce a foreign
arbitral award. [Sec. 1, Rule 13]
When to file
At any time after receipt of a foreign arbitral
award, the party may petition to the proper RTC
to recognize and enforce such award. [Sec. 2,
Rule 13]
Where to file
The petition shall be filed, at the option of the
petitioner, with the RTC:
a. Where the assets to be attached or levied
upon is located,
b. Where the act to be enjoined is being
performed,
c. In the principal place of business in the
Philippines of any of the parties,
d. Where any of the individuals who are
parties resides,
e. In the national capital judicial region. [Sec.
3, Rule 13]
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Presumption in favor of confirmation
It is presumed that a foreign arbitral award:
a. Was made and released in due course of
arbitration, and
b. Is subject to enforcement by the court.
[Sec. 11, Rule 13]
Grounds
The court may not set aside a foreign arbitral
award.
It may refuse recognition and enforcement on
the following grounds:
a. The party making the application to refuse
recognition and enforcement furnishes
proof that:
i.
A party to the arbitration agreement
was under some incapacity; or the
said agreement is not valid under the
law to which the parties have
subjected it or, failing any indication
thereof, under the law of the country
where the award was made; or
ii.
The party making the application was
not given proper notice of the
appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
iii.
The award deals with a dispute not
contemplated by or not falling within
the terms of the submission to
arbitration, or contains decisions on
matters beyond the scope of the
submission to arbitration;
- if the decisions on matters
submitted to arbitration can be
separated from those not so
submitted, only that part of the
award which contains decisions on
matters not submitted to arbitration
may be set aside; or
iv.
The composition of the arbitral tribunal
or the arbitral procedure was not in
accordance with the agreement of the
parties or, failing such agreement, was
not in accordance with the law of the
country where arbitration took place;
or
v.
The award has not yet become
binding on the parties or has been set
aside or suspended by a court of the
REMEDIAL LAW
country in which that award was
made; or
b. The court finds that:
i.
The subject-matter of the dispute is
not capable of settlement or resolution
by arbitration under Philippine law; or
ii.
The recognition or enforcement of the
award would be contrary to public
policy.
Note: The grounds are exclusive. [Sec. 4, Rule
13]
Contents
The petition shall state the following:
a. The addresses of the parties to the
arbitration;
b. The country where the award was made
and whether such country is a signatory to
the New York Convention; and
c. The relief sought.
Apart from other submissions, the petition shall
attach:
a. An authentic copy of the arbitration
agreement; and
b. An authentic copy of the arbitral award.
Note: If such documents are not in English, the
petitioner shall attach a translation which shall
be certified by an official or sworn translator or
by a diplomatic/consular agent. [Sec. 5, Rule
13]
Notice
Upon finding that the petition is sufficient in
form and substance, the court shall cause
notice and a copy of the petition to be
delivered to the respondent. [Sec 6, Rule 13]
Opposition
The respondent may file an opposition within
30 days from receipt of notice. [Sec. 6, Rule
13]
- It shall be verified by a person who has
personal knowledge of the facts stated.
[Sec. 7, Rule 13]
Submissions
1. If the issue between the parties is one of
law
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-
The parties may be required to submit
briefs of legal arguments within 30 days
from receipt of order
2. If there are issues of fact relating to the
grounds relied upon for the court to refuse
enforcement
- The court shall motu proprio or on request
of either party, require the parties to submit
affidavits of their witnesses within 15-30
days from receipt of order
- The court may allow the submission of
reply affidavits within 15-30 days from
receipt of order granting the request of the
party. [Sec. 8, Rule 13]
Hearing
The court shall set the case for hearing if there
is a need to do so.
- The affidavits shall take the place of direct
testimony and shall immediately be
subject to cross-examination.
Note: The court shall give due priority to the
hearings on petitions under this rule. [Sec. 9,
Rule 13]
Adjournment/ decision of decision
The court may adjourn or defer rendering a
decision if an application for setting aside or
suspension of the award has been made with
a competent authority in the country where the
award was made.
- Upon application, the court may also
require the other party to give suitable
security. [Sec. 10, Rule 13]
Court action
The court shall recognize and enforce a
foreign arbitral award unless a ground to refuse
under the rules is fully established.
In resolving the petition in accordance with the
Special ADR Rules, the court shall either:
a. Recognize and/or enforce, or
b. Refuse to recognize and enforce the
arbitral award.
Note: The court shall not disturb the arbitral
tribunal’s determination of facts and/or
interpretation of law.
[Sec. 11, Rule 13]
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Court decision
The decision of the court recognizing and
enforcing a foreign arbitral award is
immediately executory. [Sec. 11, Rule 13]
h. Special
Civil
Certiorari
Action
for
When available
A party may file a special civil action for
certiorari to annul or set aside a ruling to the
RTC when:
a. The RTC makes a ruling under the Special
ADR Rules,
b. Acted without or in excess of its jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction,
and
c. There is no appeal or any plain, speedy,
and adequate remedy in the ordinary
course of law.
A special civil action for certiorari may be filed
against the following orders of the court:
a. Holding that the arbitration agreement is
inexistent, invalid, or unenforceable;
b. Reversing the arbitral tribunal’s preliminary
determination upholding its jurisdiction;
c. Denying the request to refer the dispute to
arbitration;
d. Granting or refusing an interim relief;
e. Denying the petition for the appointment of
an arbitrator;
f. Confirming, vacating, or correcting a
domestic arbitral award;
g. Suspending the proceedings to set aside
an international commercial arbitral award
and referring the case back to the arbitral
tribunal;
h. Allowing a party to enforce an international
commercial arbitral award pending appeal;
i. Adjourning or deferring a ruling on whether
to set aside, recognize, and/or enforce an
international commercial arbitral award;
j. Allowing a party to enforce a foreign arbitral
award pending appeal; and
k. Denying a petition for assistance in taking
evidence.
[Sec. 26, Rule 19]
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Form
The petition shall be accompanied by:
a. A certified true copy of the questioned
judgment, order, or resolution of the RTC,
b. Copies of all the pleadings and documents
relevant and pertinent thereto, and
c. A sworn certification of non-forum
shopping as provided in the ROC. [Sec. 27,
Rule 19]
Docket fees
General rule: Upon filing of the petition, the
petitioner shall pay to the COC of the CA
docketing fees and other lawful fees of P3,500
and deposit the sum of P500 for costs.
Exception: When the CA prescribes
otherwise.
• Exemption from such may be granted by
the CA upon a verified motion setting forth
valid grounds therefor.
• If the CA denies the motion, the petitioner
shall pay the docketing and other lawful
fees and deposit for costs within 15 days
from the notice of the denial. [Sec. 27,
Rule 19]
When to file
The petition must be filed with the CA within
15 days from notice of the judgment, order, or
resolution sought to be annulled or set aside.
Note: No extension of time to file the petition
shall be allowed. [Sec. 28, Rule 19]
Arbitral tribunal as a nominal party
The arbitral tribunal shall only be a nominal
party in the petition for certiorari.
• It shall not be required to submit any
pleadings or written submissions to the
court.
• It may submit pleadings or written
submissions if it serves the interest of
justice.
Note: In petitions relating to the recognition and
enforcement of a foreign arbitral tribunal, the
tribunal shall not be included even as a nominal
party. However, the tribunal may be notified of
the proceedings and furnished with court
processes. [Sec. 29, Rule 19]
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Action of the court
1. Court to dismiss the petition [Sec. 30, Rule
19]
a. If it fails to comply with the form, docket
fees, and period to file under Rule
19.27 and 19.28; or
b. If upon consideration of the ground
alleged and the legal briefs submitted,
the petition does not appear to be
prima facie meritorious.
2. Court to order the respondent to comment
[Sec. 31, Rule 19]
• If the petition is sufficient in form and
substance, the CA shall issue an order
requiring the respondent to comment
on the petition within 15 days from
receipt of the copy thereof.
• The order shall be served on the
respondents in such a manner as the
court may direct, together with a copy
of the petition and any annexes
thereto.
Arbitration to continue
A petition for certiorari shall not prevent the
arbitral
tribunal
from
continuing
the
proceedings and rendering its award. Should
the arbitral tribunal continue with the
proceedings the arbitral proceedings and any
award rendered therein will be subject to the
final outcome of the pending petition for
certiorari. [Sec. 32, Rule 19]
The CA shall not, during the pendency of the
proceedings before it, prohibit or enjoin:
a. The commencement of the arbitration,
b. The constitution of the arbitral tribunal, or
c. The continuation of the arbitration. [Sec.
33, Rule 19]
Court decision
After the comment is filed or the time for filing
has expired, the court shall render judgment
granting the relief prayed for or which the
petitioner is entitled, or denying the same
within 15 days. [Sec. 34, Rule 19]
A certified copy of the judgment shall be
served upon the RTC in such a manner as the
CA may direct, and disobedience thereto shall
be punished as contempt. [Sec. 35, Rule 19]
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II. SPECIAL
PROCEEDINGS
SUBJECT
MATTER
OF
SPECIAL
PROCEEDINGS;
APPLICABILITY
OF
GENERAL RULES
In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as
far as practicable, applicable in special
proceedings [Sec. 2, Rule 72]
Rules in ordinary actions may be applied in
special proceedings as much as possible and
where doing so would not pose an obstacle to
said proceedings. Provisions of the ROC
requiring a certification of non-forum shopping
for complaints and initiatory pleadings, a
written explanation for non-personal service
and filing, and the payment of filing fees for
money claims against an estate would not in
any way obstruct probate proceedings, thus,
they are applicable to special proceedings
such as the settlement of the estate of a
deceased person in the present case [Sheker
v. Sheker, G.R. No. 157912 (2007)]
Action vs. Special Proceedings
An action is a formal demand of one’s right in a
court of justice in the manner prescribed by the
court or by the law. It is the method of applying
legal remedies according to definite
established rules. The term “special
proceedings” may be defined as an application
or proceeding to establish the status or right of
a party, or a particular fact. Usually, in special
proceedings, no formal pleadings are required
unless the statute expressly so provides. In
special proceedings, the remedy is granted
generally upon application or motion [Natcher
v. CA, G.R. No. 133000 (2001)]
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Cases governed; civil action v. special
proceeding
a. A civil action is one by which a party
sues another for the enforcement or
protection of a right, or the prevention
or redress of a wrong. A civil action
may either be ordinary or special.
b. A special proceeding is a remedy by
which a party seeks to establish a
status, a right, or a particular fact.
[Sec. 3(a), 3(b), Rule 1]
General rule: Special proceedings are nonadversarial in nature
Exception: May become adversarial when
there are oppositors to the petition [De Leon &
Wilwayco, Special Proceedings: Essentials for
Bench and Bar (2015)]
A special proceeding has one definite party,
who petitions or applies for a declaration of a
status, right, or particular fact, but no definite
adverse party. [Montañer v. Shari’a District
Court, G.R. No. 174975 (2009)]
A. SETTLEMENT OF
ESTATE OF DECEASED
PERSONS
MODES OF SETTLEMENT OF ESTATE
1. Extrajudicial (no will, no debts)
a. If only one heir – Affidavit of Selfadjudication
b. If heirs are all of age or the minors are
represented, and all agree – Deed of
Extrajudicial Settlement [Sec. 1, Rule
74]
2. Judicial
a. If no will, no debts, more than one heir,
and should heirs disagree – Partition
[Rule 69]
b. Summary Settlement of Estate of
Small Value [Sec. 2, Rule 74]
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c. Petition for Letters of Administration
[Rule 79]
d. Probate of a Will [Rules 75-79]
i.
Petition for Letters Testamentary
or
ii.
Petition
for
Letters
of
Administration
with
the
will
annexed (if no named executor)
1. Which Court has Jurisdiction
Exclusive original jurisdiction over all matters of
probate, both testate and intestate, shall lie
with:
Outside
Metro
Manila
MTC if gross value of the
estate does not exceed
P300,000
If it exceeds such value, then
RTC
In Metro
Manila
MTC if gross value of the
estate does not exceed
P400,000
Otherwise, RTC
[Sec. 19 and 31, B.P. 129, as amended by R.A.
7691; Maloles II v. Philips, G.R. Nos. 129505
and 133359 (2000); Lim v. CA, G.R. No.
124715 (2000)]
Exclusive jurisdiction
Sec. 1 of Rule 73 refers to courts in the
Philippines and simply means that once a
special proceeding for the settlement of the
estate of a decedent is filed in one of such
courts, that court has exclusive jurisdiction over
said estate and no other special proceedings
involving the same subject matter may be filed
before any other court. [Republic v. Villarama,
Jr., G.R. No. 117733 (1997)]
The ROC likewise provides that the Court first
taking cognizance of the settlement of the
estate of the decedent, shall exercise
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jurisdiction to the exclusion of all other Courts.
There should be no impediment to the
application of said Rules as they apply
suppletorily to the Code of Muslim Personal
Laws, there being nothing inconsistent with the
provisions of the latter statute [Musa v. Moson,
G.R. No. 95574 (1991)]
Testate proceedings take precedence over
intestate proceedings of the same estate
[Sandoval v. Santiago, G.R. No. L-1723
(1949)]
Thus, if in the course of intestate proceedings
pending before a court of first instance, it is
found that the decedent had left a last will and
testament, proceedings for the probate of the
latter should replace the intestate proceedings
even if at that stage an administrator had
already been appointed, the latter being
required to render final account and turn over
the estate in his possession to the executor
subsequently appointed. This, however, is
understood to be without prejudice that should
the alleged will be rejected or is disapproved,
the proceeding shall continue as an intestacy
[Uriarte v. CFI, G.R. No. L-21938 (1970)]
2. Venue in Judicial Settlement
of Estate
Inhabitant of the
Philippines at the
time of death (citizen
or alien)
Inhabitant of a
foreign country at
the time of death
Court of the
province where
decedent resided
at time of death
Court of any
province where
decedent had
estate
[Sec. 1, Rule 73]
Residence
In the application of venue statutes and rules,
residence rather than domicile is the significant
factor. The word “resides” means personal,
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actual, or physical habitation of a person, or his
actual residence or place of abode. It does not
mean legal residence or domicile [Fule v. CA,
G.R. No. L-40502 (1976); Garcia-Quiazon v.
Belen, G.R. No. 189121 (2013); San Luis v.
San Luis, G.R. Nos. 133743 and 134029
(2007)]
Even where the statute uses the word
‘domicile’, it must be construed as meaning
residence [Festin 16, 2011 Ed.]
Note: “Jurisdiction” as used in Rule 73 means
venue.
If venue is improperly laid
General rule: Ordinary appeal
Exception: Certiorari may be resorted to in
case of impropriety of venue (due to residence
or location of estate) appears on the record.
[Sec. 1, Rule 73]
3. Extent of Jurisdiction
Probate Court
of
The probate jurisdiction relates only to matters
having to do with the settlement of the estate
and probate of wills of deceased persons, and
the appointment and removal of administrators,
executors, guardians, and trustees [Ramos v.
CA, G.R. No. (1989)]
General rule: A probate court cannot
adjudicate or determine title to properties
claimed to be a part of the estate and which are
claimed to belong to outside parties [Ignacio v.
Reyes, G.R. 213192 (2017)]
Exceptions:
a. In a provisional manner to determine
whether said property should be included
or excluded in the inventory, without
prejudice to final determination of title in a
separate action [Cuizon v. Ramolete, G.R.
No. L-51291 (1984)]
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b. With consent of all the parties, without
prejudice to the rights of third persons
[Trinidad v. CA, G.R. No. 75579 (1991)]
c. If the question is one of collation or
advancement [Coca v. Borromeo, G.R. No.
L-27082 (1978)]
d. When the estate consists of only one
property [Portugal v. Portugal-Beltran, G.R.
No. 155555 (2005)]
The court first taking cognizance of the
settlement of estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts [Sec. 1, Rule 73]
Jurisdictional facts
Jurisdictional facts refer to the fact of death of
the decedent, his residence at the time of his
death in the province where the court is sitting,
or if he is an inhabitant of a foreign country, the
estate he left in such province [Palaganas v.
Palaganas, G.R. No. 169144 (2011)]
Where estate is settled upon dissolution of
marriage
Sec. 2, Rule 73 provides that when the
marriage is dissolved by the death of the
husband or the wife, the community property
shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the
testate or the intestate proceedings of the
deceased spouse, and if both spouses have
died, the conjugal partnership shall be
liquidated in the testate or intestate
proceedings of either. In these settlement
proceedings, the probate court has the
authority to determine if the property is
conjugal or community in nature, for purposes
of liquidation [Agtarap v. Agtarap, G.R. Nos.
177099 and 177192 (2011)]
Presumption of death
Sec. 4, Rule 73 is merely one of evidence
which permits the court to presume that a
person is dead after the fact that such person
had been unheard from for the periods fixed in
the Civil Code. This presumption may arise and
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be invoked and made in a case, either in an
action or in a special proceeding, which is tried
or heard by, and submitted for decision to, a
competent court. Independently of such an
action or special proceeding, the presumption
of death cannot be invoked, nor can it be made
the subject of an action or special proceeding
[Valdez v. People, G.R. No. 180863 (2009),
citing In re: Szatraw, G.R. No. L-1780 (1948)]
4. Powers and Duties
Probate Court
of
a
It is the duty of courts of probate jurisdiction to
guard jealously the estates of the deceased
person by intervening in the administration
thereof in order to remedy or repair any injury
that may be done thereto [Dariano v.
Fernandez Fidalgo, G.R. No. L-4918 (1909)]
Ancillary powers of a probate court
a. Issue warrants and processes to compel
attendance of a witness and to carry into
effect their orders and judgments
b. Issue warrant for apprehension and
imprisonment of a person who refuses to
perform an order or judgment
c. All other powers granted to them by law
[Sec. 3, Rule 73].
SUMMARY
SETTLEMENT OF
ESTATES
B.
General rule: The estate of the decedent
should be judicially administered through an
administrator or executor.
Exceptions:
Law allows heirs to resort to
1. Extrajudicial settlement of estate (decedent
died intestate and left no debts) [Sec. 1,
Rule 74]
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2. Summary settlement of estate (for estates
of small value, when gross estate does not
exceed P10,000) [Sec. 2, Rule 74]
Recourse to an administration proceeding
even if the estate has no debts is sanctioned
only if the heirs have good reasons for not
resorting to an action for partition. Where
partition is possible, either in or out of court, the
estate should not be burdened with an
administration proceeding without good and
compelling reasons [Sps. Villafria v. Plazo,
G.R. No. 187524 (2015)]
1. Extrajudicial Settlement by
Agreement Between Heirs;
When Allowed
Requisites
a. Decedent died intestate
b. Left no debts
c. Heirs are all of age, or minors are
represented by their legal or judicial
representatives, and
d. ALL heirs agree [Sec. 1, Rule 74]
Modes
a. If sole heir – Affidavit of Self-adjudication
(of the whole estate)
b. If more than one heir –
1. Deed of Extrajudicial Settlement is
resorted to if there is no disagreement
among the heirs
2. If there is a disagreement, then they
may resort to an action for partition
(judicial)
Note: Both the Affidavit and the Deed are public
instruments.
[Sec. 1, Rule 74]
The general rule is that when a person dies
intestate, or, if testate, failed to name an
executor in his will or the executor so named is
incompetent, or refuses the trust, or fails to
furnish the bond required by the Rules, then the
decedent’s
estate
shall
be
judicially
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administered and the competent court shall
appoint a qualified administrator in the order
established in Sec. 6, Rule 78. An exception to
this rule is found in Sec. 1, Rule 74 wherein the
heirs of a decedent, who left no will and no
debts due from his estate, may divide the
estate either extrajudicially or in an ordinary
action for partition without submitting the same
for judicial administration nor applying for the
appointment of an administrator by the court
[Spouses Villafria v. Plazo, G.R. No. 187524
(2015)]
Where, in the extrajudicial settlement of the
estate, heirs were excluded and minor heirs
were not properly represented, the settlement
was not valid and binding upon them [Neri v.
Heirs of Spouses Yusop, G.R. No. 194366
(2012)]
Requirement of public instrument
No law requires partition among heirs to be in
writing and be registered in order to be valid.
The requirement in Sec. 1, Rule 74 that a
partition be put in a public document and
registered, has for its purpose the protection of
creditors and the heirs themselves against
tardy claims. The requirement of Art. 1358 of
the Civil Code is only for convenience, noncompliance with which does not affect the
validity or enforceability of the acts of the
parties as among themselves [Kilario v. CA,
G.R. No. 134329 (2000)]
Note: The last sentence of the cited doctrine
from Kilario implies that non-compliance with
Sec. 1, Rule 74 will be binding only as to the
parties to the partition but not to non-parties
(e.g. creditors who did not know of the
partition).
Filing of public instrument/affidavit with the
proper Registry of Deeds and posting of a
bond if the estate has personal property
(bond equivalent to amount of personal
property)
↓
Publication of notice of the fact of
extrajudicial settlement once a week for 3
consecutive weeks in a newspaper of
general circulation in the province, and after
such other notice to interested persons as
the court may direct
The procedure outlined in Sec. 1 of Rule 74 is
an ex parte proceeding. The rule plainly states,
however, that persons who do not participate
or had no notice of an extrajudicial settlement
will not be bound thereby.
The requirement of publication is geared for the
protection of creditors and was never intended
to deprive heirs of their lawful participation in
the decedent's estate [Benatiro v. Heirs of
Cuyos, G.R. No. 161220 (2008), citing Cua v.
Vargas, G.R. No. 156536 (2006)]
Validity of compromise agreement
Such is valid, binding upon the parties as
individuals, upon the perfection of the contract,
even without previous authority of the court to
enter into such agreement [Borja v. Vda. De
Borja, G.R. No. L-28040 (1972)]
2. Two-Year Prescriptive Period
Heirs or other persons deprived of lawful
participation in the estate may compel judicial
settlement of estate within 2 years from
settlement and distribution [Sec. 1, Rule 74]
Procedure
Division of estate in a public instrument or
affidavit of adjudication
↓
A lien shall be constituted on the real property
of the estate and together with the bond, it shall
be liable to creditors, heirs or other persons for
a full period of 2 years after such distribution.
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Such lien will not be cancelled before the lapse
of two years even if a distributee offers to post
bond to answer for contingent claims [Rebong
v. Ibanez, G.R. No. L-1578 (1947)]
Disputable presumption of no debt
It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of
administration within two (2) years after the
death of the decedent [Sec. 1, Rule 74]
3. Affidavit of Self-Adjudication
by Sole Heir
An Affidavit of Self-Adjudication is only proper
when the affiant is the sole heir of the
decedent. This is clear from the second
sentence of Sec. 1, Rule 74 [Rebusquillo v.
Spouses Galvez, G.R. No. 204029 (2014)]
4. Summary
Settlement
of
Estates of Small Value; When
Allowed
When allowed
Whenever the gross value of estate of the
decedent does not exceed P10,000
Procedural requirements
a. Petition by an interested person alleging
fact that estate does exceed P10,000
b. Notice
1. Published once a week for 3
consecutive weeks
2. In a newspaper of general circulation in
the province
c. Other notice to interested persons as the
court may direct
d. Hearing
1. Held not less than 1 month nor more
than 3 months
2. Counted from the date of the last
publication of notice [Sec. 2, Rule 74]
e. Bond in an amount to be fixed by court if
personal property is to be distributed [Sec.
3, Rule 74]
Upon fulfillment of the requisites, the court
may proceed summarily without the
appointment of an executor/administrator and
without delay –
a. to grant, if proper, allowance of the will, if
there be any
b. to determine who are persons legally
entitled to participate in the estate, and
c. to apportion and divide the estate among
them after the payment of such debts of the
estate
The persons legally entitled to participate in the
estate,
a. in their own right, if of lawful age, or
b. if otherwise, by their guardians or trustees
legally appointed and qualified,
will be entitled to receive and enter into
possession of the portions of the estate so
awarded to them respectively [Sec. 2, Rule 74]
Procedure
Death of the decedent
↓
Petition for summary settlement with
allegation that the gross value of the estate
does not exceed P10,000
↓
Publication of notice once a week for 3
consecutive weeks in a newspaper of
general circulation in the province
↓
Giving of such other notice to interested
persons as the court may direct
↓
Hearing held not less than 1 month nor more
than 3 months from the date of the last
publication of notice
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Court to proceed summarily, without
appointing an executor/administrator, and to
a. Grant allowance of will, if any
(2) Determine persons entitled to estate
(3) Pay debts of estate which are due
↓
Filing of bond when required by the court
[Sec. 3, Rule 74]
↓
Partition of estate
Extrajudicial
settlement
Summary
settlement
Court intervention
not required
Summary judicial
adjudication needed
Decedent left no will
(allowed only in
intestate
succession)
Decedent may or
may not have left a
will (died
intestate/testate)
Decedent left no
debts
Decedent may have
left debts
Heirs are all of age
or minors are
represented
No such requirement
Instituted only at the
instance and by
agreement of all
heirs
May be instituted by
any interested party
even by a creditor
without consent of
the heirs
Value of the estate
is immaterial
Gross value of the
estate must not
exceed P10,000
Bond filed with the
Register of Deeds
in an amount equal
to the value of the
personal property
of the estate
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Bond filed with and
amount to be
determined by the
court
Where the contention that the decedent’s
estate is less than P5,000 rests on a
controversial basis and no evidence was
adduced to ascertain the actual value of the
estate, the probate court is not precluded from
proceeding with the intestate proceedings
[Intestate Estate of Sebial v. Sebial, G.R. No.
L-23419 (1975)]
5. Remedies
of
Aggrieved
Parties after Extrajudicial
Settlement of Estate
Within reglementary period of TWO YEARS
a. Claim on the bond for personal properties
[Sec. 4, Rule 74]
b. Claim on lien on real property,
notwithstanding any transfers of real
property that may have been made [Sec. 4,
Rule 74]
c. Judicial settlement of estate [Sec. 4, Rule
74]
d. Action to annul settlement (fraud [4 years]
or implied trust [10 years])
When applicable
If it shall appear at any time within 2 years after
the settlement and distribution of an estate that
an heir or other person
a. has been unduly deprived of his lawful
participation in the estate
1. He shall have a right to compel the
settlement of the estate in the courts for
the purpose of satisfying such lawful
participation.
2. If annulment on the ground of fraud, an
action for reconveyance based on an
implied or constructive trust must be
filed within 10 years from accrual of the
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SPECIAL PROCEEDINGS
cause
of
action
[Amerol
v.
Bagumbaran, G.R. No. L-33261
(1987); Zuniga-Santos v. Santos-Gran,
G.R. No. 197380 (2014)]
b. has been unduly deprived of his lawful
participation payable in money, the court
having jurisdiction of the estate may, by
order for that purpose, after hearing
c. settle the amount of such debts or
lawful participation, and
d. may issue execution against the bond
or against the real estate belonging to
the deceased, or both [Sec. 4, Rule 74]
When not applicable
a. To persons who have participated or taken
part or had notice of the extrajudicial
partition
b. When the provisions of Sec. 1 of Rule 74
have been strictly complied with (all
persons or heirs of the decedent have
taken part in the extrajudicial settlement or
are represented by themselves or through
guardians)
The buyer of real property the title of which
contains an annotation pursuant to Sec. 4,
Rule 74 cannot be considered innocent
purchasers for value [David v. Malay, G.R. No.
132644 (1999)]. The foregoing rule clearly
covers transfers of real property to any person,
as long as the deprived heir or creditor
vindicates his rights within two years from the
date of the settlement and distribution of
estate. The effects of this provision are not
limited to the heirs or original distributees of the
estate properties, but shall affect any
transferee of the properties [Spouses Domingo
v. Roces, G.R. No. 147468 (2003)]
REMEDIAL LAW
c. outside Philippines,
he may present his claim within 1 year after
such disability is removed [Sec. 5, Rule 74].
Within the reglementary period, the judge of a
probate court has the power to reopen estate
proceedings even after the issuance of an
order approving a project of partition and
closing the proceedings. Rather than requiring
an allegedly preterited party to air his
grievances in a separate and independent
proceeding, he may, within the reglementary
period, claim his relief sought in the same case
by reopening the same even after a project of
partition and final accounting had been
approved. [Jerez v. Nietes, G.R. No. L-26876
(1969)]
Even if the original motion did not afford legal
standing to the three legitimate minor children,
under Sec. 5, Rule 74, such motion may be
lodged with the court within one year after the
minors have reached majority [In Re: Francisco
v. Carreon, G.R. No. L-5033 (1954)]
OTHER REMEDIES
a. Action for reconveyance of real property –
based on an implied trust, reckoned 10
years from issuance of title [Marquez v. CA,
G.R. No. 125715 (1998)]
b. Rescission – in case of preterition of
compulsory heir in partition tainted with bad
faith [Art. 1104, NCC]
c. Petition for relief – on ground of fraud,
accident, mistake, excusable negligence.
Within 60 days after petitioner learns of
judgment or final order, or other
proceedings to be set aside, and not more
than 6 months after such judgment or order
is entered or taken [Rule 38]
Additional period for claim of minor or
incapacitated person
If on the date of the expiration of the period of
2 years after the settlement or distribution of an
estate, the person authorized to file a claim is
a. a minor or mentally incapacitated
b. in prison, or
Page 275 of 525
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C.
SPECIAL PROCEEDINGS
PRODUCTION AND
PROBATE OF WILL
1. Nature
of
Proceedings
Probate
a. In rem proceeding
b. Mandatory – no will shall pass either real or
personal property unless it is proved and
allowed in the proper court [Sec. 1, Rule
75]
c. Conclusive as to its due execution, but
subject to the right of appeal [Sec. 1, Rule
75]
d. Right to ask for probate does not prescribe
[Guevara v. Guevara, G.R. No. L-5405
(1956)]
e. Doctrine of estoppel does not apply
[Fernandez v. Dimagiba, G.R. No. L23638 (1967); Testate Estate of Abada v.
Abaja, G.R. No. 147145 (2005)]
Before any will can have force or validity, it
must be probated. Until admitted to probate, a
will has no effect whatsoever and no right can
be claimed thereunder [Sps. Pascual v. CA,
G.R. No. 115925 (2003)]
The presentation of the will for probate is
mandatory and is a matter of public policy.
Unless the will is probated, the right of a person
to dispose of his property may be rendered
nugatory [Maninang v. CA, G.R. No. L-57848
(1982); Dy Yieng Seangio, et al. v. Reyes, G.R.
Nos. 147371-72 (2006)]
Duty of custodian and executor to deliver
the will
Within 20 days after he knows of the testator’s
death, the person who has custody of the will
shall deliver the will to the court having
jurisdiction, or to the executor named in the will
[Sec. 2, Rule 75]
REMEDIAL LAW
In seeking for the production of the original
holographic will, the remedy of mandamus
cannot be availed of because there lies another
plain, speedy and adequate remedy in the
ordinary course of law. The ROC provides for
the institution of probate proceedings for the
allowance of the will, whether it be in the
possession of the petitioner or not (Sec. 1, Rule
76). [Uy Kiao Eng v. Lee, G.R. No.176831
(2010)]
The person named executor shall present the
will to the court having jurisdiction, unless the
will has reached it in any other manner, and
shall signify in writing his acceptance/refusal of
the trust
a. within 20 days after he knows of the death
of the testator, or
b. within 20 days after he knows that he is
named executor if he obtained such
knowledge after the testator’s death [Sec.
3, Rule 75].
Person retaining the will may be committed to
prison until the will is delivered if:
a. He has custody of the will
b. There is a court order directing him to
deliver the will, and
c. He neglects without reasonable cause to
deliver the same [Sec. 5, Rule 75].
So much is the concern of the law for the
indispensability of probating a will that Sec. 4,
Rule 75 penalizes with a fine not exceeding
P2,000 the failure of the custodian of a will to
deliver the same to the court or to the executor
named therein, as also the failure of the
executor to present the will to the proper court
for probate; and under Section of the same
rule, such custodian may be detained by order
of the court until he makes the required delivery
of the will [Vda. De Precilla v. Narciso, G.R. No.
L-27200 (1972); Uy Kiao Eng, G.R. No.176831
(2010)]
Page 276 of 525
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SPECIAL PROCEEDINGS
2. Who
May
Petition
For
Probate; Persons Entitled To
Notice
The executor, devisee, or legatee named in the
will, or any other person interested in the
estate, may, at any time after the death of the
testator, petition the court having jurisdiction to
have the will allowed, whether the same be in
his possession or not, or is lost or destroyed
[Sections 1 and 2, Rule 76; Palaganas v.
Palaganas, G.R. No. 169144 (2011)]
A will may be probated
a. Before the testator’s death – By testator
himself (ante-mortem probate)
b. After the testator’s death – By executor,
devisee, or legatee named in the will or any
person interested in the estate [Sec. 1,
Rule 76]
Meaning of interest in estate
An interested party is one who would be
benefited by the estate such as an heir or one
who has a claim against the estate like a
creditor [Sumilang v. Ramagosa, G.R. No. L23135 (1967)]
Persons entitled to notice
a. Known heirs, legatees and devisees
resident in Philippines
b. Named executor if he is not petitioner, and
c. Named co-executors not petitioning if their
place of residence is known
[Sec. 4, Rule 76]
Note: If the testator himself asks for probate of
his own will, notice shall be sent only to
compulsory heirs [Sec. 4, Rule 76; Nittscher v.
Nittscher, G.R. No. 160530 (2007)]
Notice is required to be given to known heirs,
legatees, and devisees of the testator. In the
will, the respondent was instituted as the sole
heir of the decedent. [Alaban v. CA, G.R. No.
156021 (2005)]
REMEDIAL LAW
Periods to give notice
a. Personal service – At least 10 days before
hearing
b. By mail – at least 20 days before hearing
[Sec. 4, Rule 76]
ALLOWANCE OR
DISALLOWANCE OF WILL
D.
Probate or allowance of wills is the act of
proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
registration and carrying out its provision in so
far as they are in accordance with law [Festin
40, 2011 Ed.]
General rule: A probate proceeding only looks
at extrinsic validity
Exception: The probate of a will might become
an idle ceremony if on its face it appears to be
intrinsically
void.
Where
practical
considerations demand that the intrinsic
validity of the will be passed upon, even before
it is probated, the court should meet the issue
[Nepomuceno v. CA, G.R. No. L-62952 (1985)]
Extrinsic validity - due execution of the will
which means:
a. That the will was executed strictly in
accordance with the formalities required by
law
b. That the testator was of sound and
disposing mind when the will was executed
c. That there was no vitiation of consent
through duress, fear or threats
d. That it was not procured by undue and
improper pressure or influence on part of
beneficiary or other person for his benefit
e. That the testator’s signature is genuine (not
procured through fraud nor trick), and that
the testator intended that what he executed
was his last will and testament)
[Sec. 9, Rule 76]
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SPECIAL PROCEEDINGS
The very existence of the will is in itself prima
facie proof that the supposed testatrix has
willed that her estate be distributed in the
manner provided for in the will and it is
incumbent upon the state that, if legally
tenable, such desire be given full effect
independent of the attitude of the parties
affected thereby. What is decisive is that the
court is convinced by evidence before it, not
necessarily from the attesting witnesses,
although they must testify, that that will was or
was not duly executed in the manner required
by law [Baltazar v. Laxa, G.R. No. 174489
(2012)]
1. Contents of petition
allowance of will
for
a. Jurisdictional facts – refer to the fact of
death of the decedent, his residence at the
time of his death in the province where the
court is sitting, or if he is an inhabitant of a
foreign country, the estate he left in such
province [Palaganas v. Palaganas, G.R.
No. 169144 (2011)]
b. Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
c. Probable value and character of the
property of the estate
d. Name of the person for whom letters are
prayed
e. If the will has not been delivered to the
court, the name of the person having
custody of it
[Sec. 2, Rule 76]
Effects of defect in petition
No defect in petition shall render void the
allowance of will, or the issuance of letters
testamentary or of administration with the will
annexed [Sec. 2, Rule 76]
Jurisdiction, how acquired
Publication of the notice of hearing brings in the
whole world as a party in the case for probate
and vests the court with jurisdiction to hear and
REMEDIAL LAW
decide it. Thus, parties not mentioned in the
petition for probate eventually became parties
as a consequence of publication [Alaban v. CA,
G.R. No. 156021 (2005)]
The notice must be published 3 weeks
successively, previous to the time set for
hearing, in a newspaper of general circulation
in the province [Sec. 3, Rule 76]
EVIDENCE REQUIRED IN SUPPORT OF A
WILL
Uncontested will
a. Notarial Will – Testimony of at least one
subscribing witness that the will was
executed as required by law [Sec. 5, Rule
76]
1. If all subscribing witnesses reside
outside of the province but their
deposition can be taken elsewhere, the
court may on motion order that it be
taken and may authorize making of
photocopy of the will to be presented to
witness [Sec. 7, Rule 76]
2. If all subscribing witnesses are dead,
insane or do not reside in Philippines,
other witnesses not subscribing may
be presented [Sec. 8, Rule 76]
b. Holographic wills
1. At least one witness who knows the
handwriting and signature of the
testator who explicitly declares that the
will and signature are in the
handwriting of the testator, or
2. In the absence of such competent
witness and the court deems it
necessary, expert testimony may be
resorted to
[Sec. 5, Rule 76]
If the testator himself petitions for probate of
holographic will and it is not contested. The fact
that he affirms that the holographic will and the
signature are in his own handwriting shall be
sufficient evidence of genuineness and due
execution thereof [Sec. 12, Rule 76]
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U.P. LAW BOC
SPECIAL PROCEEDINGS
It is not mandatory that witnesses be
presented first before expert testimony maybe
resorted to unlike in notarial wills wherein
attesting witnesses must first be presented
[Azaola v. Singson, G.R. No. L-14003 (1960)]
Contested Will
Anyone appearing to contest the will must state
in writing his grounds for opposing its
allowance and serve a copy to petitioner and
other interested parties [Sec. 10, Rule 76]
a. Notarial Will
1. All subscribing witness and the notary
if present in Philippines and not insane
must be presented
2. If dead, insane or absent – said fact
must be satisfactorily shown in court
3. If present in Philippines but outside the
province – deposition must be taken
[Sec. 11, Rule 76; Baltazar v. Laxa, G.R.
No. 174489 (2012)]
Can testimony of the subscribing witnesses be
dispensed with in a contested will? YES. If any
or all of the subscribing witness:
1. testify against the due execution of the will,
or
2. do not remember having attested to it, or
3. are otherwise of doubtful credibility
The court may allow the will if it is satisfied from
testimony of other witnesses and all evidence
presented that the will was executed and
attested in the manner required by law [Sec.11,
Rule 76]
a. Holographic wills
1. At least three witness who knows the
handwriting and signature of the
testator who explicitly declares that the
will and signature are in the
handwriting of the testator
2. In the absence of such competent
witness and the court deems it
necessary, expert testimony may be
resorted to [Sec. 11, Rule 76]
REMEDIAL LAW
If the testator himself petitions for probate of
holographic will and it is contested, the
contestant has the burden of disproving
genuineness. Testator may present additional
proof to rebut contestant’s evidence [Sec. 12,
Rule 76]
Lost Will
a. Notarial Wills – even if lost may be proved
through the following facts
1. Execution and validity of the will
2. Its existence at the time of testator’s
death or that it has been fraudulently or
accidentally destroyed during testator’s
lifetime without his knowledge, and
3. Provisions of the will clearly and
distinctly proved by at least two
credible witnesses
If lost will is proved, its provisions must be
distinctly stated and certified by the judge,
under seal of court, and the certificate must be
filed and recorded as other wills are filed and
recorded [Sec. 6, Rule 76]
b. Holographic Wills
General rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will
Exception: A photostatic copy or xerox of the
holographic will may be allowed because
comparison can be made with the standard
writings of the testator [Rodelas v. Aranza,
G.R. No. L-58509 (1982)]
2. Grounds for Disallowing a
Will
The will shall be disallowed if:
a. Not executed and attested as required by
law
Page 279 of 525
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SPECIAL PROCEEDINGS
b. Testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
c. Executed under duress, or the influence of
fear, or threats
d. Procured by undue and improper pressure
and influence, on the part of the
beneficiary, or of some other person for his
benefit, or
e. Signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto [Sec. 9, Rule 76
cf. Art. 839, CC]
The list is exclusive. Thus, in a petition to admit
a holographic will to probate the only issue to
be resolved are: (1) whether the instrument
submitted is, indeed, the decedent’s last will
and testament; (2) whether said will was
executed in accordance with the formalities
prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the
time the will was executed; and (4) whether the
execution of the will and its signing were the
voluntary acts of the descendants [Spouses
Ajero v. CA, G.R. No. 106720 (1994)]
3. Reprobate; Requisites before
Will Proved Outside Allowed
in the Philippines; Effects of
Probate
Effect of probate of will
Decree of probate is conclusive as to its due
execution, subject to the right of appeal [Sec.
1, Rule 75]
If a decision admitting a will to probate
becomes final, there can no longer be any
challenge to its due execution and authenticity.
Thus, a criminal action will not lie against an
alleged forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction [Mercado v. Santos, G.R. No.
45629 (1938)]
REMEDIAL LAW
Order allowing or disallowing a will may be the
subject of an appeal [Sec. 1, Rule 109]
Reprobate
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper court
in Philippines [Sec. 1, Rule 77]
Requisites before a Will Proved Abroad
Would be Allowed in Philippines
a. Duly authenticated copy of will
b. Duly authenticated order or decree of its
allowance in foreign country, and
c. Petition for allowance in Philippines filed by
the executor or other person interested
[Sec. 2, Rule 77]
The court having jurisdiction shall fix a time and
place for the hearing and cause notice thereof
to be given as in case of an original will
presented for allowance [Sec. 2, Rule 77]
Evidence necessary for reprobate
a. due execution of the will in accordance with
the foreign laws
b. testator has his domicile in the foreign
country and not in Philippines
c. will has been admitted to probate in such
country
d. fact that the foreign tribunal is a probate
court, and
e. laws of a foreign country on procedure and
allowance of wills
[Vda. De Perez v. Tolete, G.R. No. 76714
(1994)]
Our laws do not prohibit the probate of wills
executed by foreigners abroad although the
same have not as yet been probated and
allowed in the countries of their execution. A
foreign will can be given legal effect in our
jurisdiction. [Palaganas v. Palaganas, G.R. No.
169144 (2011)]
Page 280 of 525
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REMEDIAL LAW
SPECIAL PROCEEDINGS
Effect of Reprobate
a. Will shall have the same effect as if
originally proved and allowed in Philippine
court [Sec. 3, Rule 77]
b. The grant of letters testamentary or of
administration shall extend to all estate of
the testator in Philippines
c. After payment of just debts and expenses
of administration, estate shall be disposed
of according to the will
d. Residue disposed of in accordance with
law [Sec. 4, Rule 77]
Questions as to title to property
General rule: The probate court, whether in a
testate or intestate proceeding, can only pass
upon questions of title provisionally. The
reason is that the probate court’s limited
jurisdiction and the principle that questions of
title or ownership, which result in exclusion or
inclusion from the inventory of the property,
can only be settled in a separate action [Aranas
v. Mercado, G.R. No. 156407 (2014), citing De
Leon v. CA, G.R. 128781 (2002); Jimenez v.
CA, G.R. No. 75773 (1990); Agtarap v.
Agtarap, G.R. Nos. 177099 and 177192
(2011)]
Exception: If the interested parties are all
heirs, or the question is one of collation or
advancement, or the parties consent to the
assumption of jurisdiction by the probate court
and the rights of third parties are not impaired,
the probate court is competent to decide the
question of ownership [Cora v. Vda. De
Pangilinan, G.R. Nos. L-27082 and L-29545
(1978); Agtarap v. Agtarap, G.R. Nos. 177099
and 177192 (2011)]
E.
LETTERS
TESTAMENTARY AND OF
ADMINISTRATION
1. When and to Whom Letters of
Administration are Granted
Who may administer the estate of a deceased
person:
a. Executor
b. Administrator
Executor
Person named
expressly by
deceased person in
his will to administer,
settle, and liquidate
estate, and
subsequently
appointed by court
Has duty to present
the will to court within
20 days after (a) he
learns of the death of
testator or (b) after
he knew he was
appointed as
executor (if he
obtained such
knowledge after
death of testator),
unless will has
reached the court in
any other manner
The testator may
provide that he may
serve without a bond
but the court shall
direct him to post a
Page 281 of 525
Administrator
Appointed when
a. Testator did not
appoint an
executor
b. The appointment
was refused
c. The executor is
incompetent to
serve
d. The executor
failed to file a
bond when
required
e. The will was
disallowed
f. No will (intestate
succession)
No such duty
Required to file bond
unless exempted by
law
U.P. LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
bond conditioned
only to pay debts
[Republic v. Marcos II, G.R. Nos. 130371 and
130855 (2009)]
The court may
require a further bond
for sufficient cause
Compensation
provided in the will
controls, unless
renounced
The courts may delve into the question of the
suitableness and fitness of an administrator,
notwithstanding the fact that both are
compulsory heirs, and may in fact appoint one
over the other even if both possess equal
status in the order of preference [Marcelo
Investment and Management Corp. v. Marcelo,
Jr., G.R. No. 209651 (2014)]
First part of Sec. 7,
Rule 85 applies
If no provision for
compensation, Sec. 7
of Rule 85 applies
Any competent person may serve as an
executor or administrator.
Executor of an executor shall not, as such,
administer the estate of first testator [Sec. 2,
Rule 78]
Married woman may serve as executor or
administrator and a marriage of a single
woman shall not affect her authority so to serve
under a previous appointment [Sec. 3, Rule 78]
Who are incompetent to serve as executor
or administrator
a. Minor
b. Non-resident
c. One who, in the opinion of the court, is unfit
to exercise the duties of the trust by reason
of
1. Drunkenness
2. Improvidence
3. Want of understanding
4. Want of integrity, or
5. Conviction of an offense involving
moral turpitude
[Sec. 1, Rule 78]
To be disqualified to serve as executor or
administrator under Sec. 1(e), Rule 78, it must
be shown that the conviction must be for an
offense involving moral turpitude. Thus, one’s
failure to file a return as required by the NIRC
cannot be a basis for disqualification, it not
being a crime involving moral turpitude
Other grounds in jurisprudence
a. In this jurisdiction, one is considered to be
unsuitable
for
appointment
as
administrator when he has an adverse
interest of some kind or hostility to those
immediately interested in the estate. [Lim v.
Diaz-Millarez, G.R. No. L-17633 (1966)]
b. The administrator should be indifferent
between the estate and claimants of the
property, except to preserve it for due
administration, and he should be removed
when his interests conflict with such right
and duty. [Medina v. CA, G.R. No. L-34760
(1973)]
The regular administrator is charged with the
task of accomplishing and terminating the
administration of the estate with the utmost
reasonable dispatch, with a view to an early
distribution of the net estate among the heirs
and persons entitled thereto. [Medina v. CA,
G.R. No. L-34760 (1973)]
When are letters testamentary or of
administration granted
Letters testamentary – an authority issued to
an executor named in the will to administer the
estate. It is issued once the will has been
proved and allowed, and if the executor named
is competent, accepts the trust and gives bond
[Sec. 4, Rule 78]
Letters of administration – authority issued
by court to a competent person to administer
the estate if
a. No executor is named in will
b. Person dies intestate [Sec. 6, Rule 78]
c. The will is void or is not admitted to probate
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SPECIAL PROCEEDINGS
Letters of administration with the will
annexed - authority issued by court to a
competent person to administer the estate if
the executor named in the will:
a. refuses to accept the trust
b. is incompetent
c. fails to give the required bond [Sec. 6, Rule
78]
2. Order of Preference
Order of preference in the grant of letters of
administration
a. Surviving spouse, or next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve
b. If those enumerated above be incompetent
or unwilling, or if the husband or widow, or
next of kin, neglects for 30 days after the
death of the person to apply for
administration or to request that
administration be granted to some other
person, one or more of the principal
creditors, if competent and willing to serve
c. If there is no such creditor, such other
person as the court may select
[Sec. 6, Rule 78]
Next of kin are those entitled by law to receive
the decedent’s properties [Ventura v. Ventura,
G.R. No. L-26306 (1988)]
The probate court may address the issue of
filiation especially when the applicant for letters
of administration claims to be the decedent’s
next of kin or heir [Angeles v. Maglaya, G.R.
No. 153798 (2005)]
The order of preference in the appointment of
a regular administrator as provided in the
afore-quoted provision does not apply to the
selection of a special administrator. The
preference under Section 6, Rule 78 for the
next of kin refers to the appointment of a
regular administrator, and not of a special
administrator, as the appointment of the latter
lies entirely in the discretion of the court, and is
not appealable [Tan v. Gedorio, G.R. No.
166520 (2008)]
REMEDIAL LAW
Reason for order of preference
Those who would reap the benefit of a wise,
speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest and
most influential motive to administer the estate
correctly [Gonzalez v. Aguinaldo, et al., G.R.
No. 74769 (1990)]
In the appointment of the administrator of the
estate of the deceased person, the principal
consideration reckoned with is the interest in
said estate of the one to be appointed as
administrator. [Suntay III v. Cojuangco-Suntay,
G.R. No. 183053 (2012)]
Mere failure to apply for letters of
administration does not remove preference [1
ALR 1247]
Note: The order of preference is not absolute
for it depends on the attendant facts and
circumstances of each case. The selection of
an administrator lies in the sound discretion of
the
trial
court.
[Aguinaldo-Suntay
v.
Cojuangco-Suntay, G.R. No.183053 (2010)]
30-day period may be waived
Just as the order of preference is not absolute
and may be disregarded for valid cause, so
may the 30-day period be likewise waived
under the permissive tone in paragraph (b) of
said rule which merely provides that said
letters, as an alternative, “may be granted to
one or more of the principal creditors” [Gabriel
v. CA, G.R. No. 101512 (1992)]
Co-administrators may be appointed [Matute v.
CA, G.R. No. L-26751 (1969)] In the
appointment of a co-administrator, the size of,
and benefits to the estate may be considered
by the court. Thus, where the estate is large or,
from any cause, an intricate or perplexing one
to settle, the appointment of co-administrators
may be sanctioned by law [Uy v. CA, G.R. No.
167979 (2006)]
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3. Opposition to Issuance of
Letters
Testamentary;
Simultaneous
Filing
of
Petition for Administration
c. Probable value and character of the estate,
and
d. Name of person for whom letters is prayed
[Sec. 2, Rule 79; Palaganas v. Palaganas,
G.R. No. 169144 (2011)]
Who may oppose
Any person interested in a will [Sec. 1, Rule 79]
While recitals in the death certificate of the
decedent can be considered proof of a
decedent’s residence at the time of his death,
the contents thereof, however, are not binding
on the courts. [Garcia-Quiazon v. Belen, G.R.
No. 189121 (2013)]
Meaning of interested person
One who would be benefited by the estate,
such as an heir, or one who has a claim against
the estate, such as a creditor; thus, interest
must be material and direct, not merely indirect
or contingent. [Maloles II v. Philips, G.R Nos.
129505 and 133359 (2000); Saguinsin v.
Lindayag, G.R. No. L-17759 (1962)]
A legal heir who has validly assigned his
hereditary rights before the institution of
settlement proceedings is no longer an
“interested party.” He has no more interest in
the decedent’s estate. [Duran v. Duran, G.R.
No. L-23372 (1967)]
Grounds
a. Incompetency of the person/s for whom
letters are prayed, or
b. Contestant’s own right to the administration
(ex. preferential right under Sec. 6, Rule
78)
[Sec. 4, Rule 79]
Form required
Grounds for opposition must be stated in
writing; court shall then hear and pass upon
sufficiency of such grounds. [Sec. 1, Rule 79]
Contents of petition for letters of
administration
a. Jurisdictional facts
1. Death of testator
2. Residence at time of death in the
province where probate court is sitting,
or
3. If he is an inhabitant of foreign country,
his having left his estate in such
province [Diez v. Serra, G.R. No. L27650 (1927)]
b. Names, ages and residences of heirs, and
names and residences of creditors
Defect in petition would not render void the
issuance of letters of administration [Sec. 2,
Rule 79]
Publication and notice
Notice of hearing must be given in the manner
provided in Sec. 3 and 4, Rule 76, by:
a. Publication, and
b. Personal service or by mail
to the known heirs and creditors of the
decedent, and to any other persons believed to
have an interest in the estate
[Sec. 3, Rule 79]
Where no notice as required by Sec. 3, Rule 79
has been given to persons believed to have an
interest in the estate of the deceased person,
the proceedings for the settlement of the estate
is void and should be annulled. The
requirement as to notice is essential to the
validity of the proceeding in order that no
person may be deprived of his right to property
without due process of law [De Guzman v.
Angeles, G.R. No. 78590 (1988)]
Simultaneous filing of opposition and
petition
An interested person opposing the petition for
administration may pray in his opposition that
letters be issued to himself, or to any
competent person/s named in it. [Sec. 4, Rule
79]
Order appointing the regular administrator is
appealable [Sec. 1, Rule 109]
When letters of administration are issued
If proven at a hearing that
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a. Notice has been given as required, and
b. Decedent left no will, or there is no
competent and willing executor.
[Sec. 5, Rule 79]
One who is named as executor in the will or
one who enjoys preference under the rules is
not automatically entitled to the issuance of
letters testamentary/of administration. A
hearing has to be held in order to ascertain her
fitness to act as executor/administrator.
[Baluyut v. Cruz Paño, G.R. No. L-42088
(1976)]
Letters of administration may be granted to any
qualified applicant, though it appears that there
are other competent persons having better
right, if such persons fail to appear when
notified and claim the issuance of letters to
themselves. [Sec. 6, Rule 79]
4. Powers
and
Duties
of
Executors
and
Administrators; Restrictions
on the Powers
Posting of bond
Before an executor or administrator enters
upon the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond in such sum as the court
directs. [Sec. 1, Rule 81]
Purpose
The bond posted by the administrators and
executors is intended as an indemnity to the
creditors, the heirs and the estate
How liability on the bond is enforced
By motion or in a separate action [Festin 56,
2011 Ed.]
Conditions on the bond
a. Make and return to the court, within 3
months, a true and complete inventory of
all goods, chattel, rights, credits, and estate
of the deceased which shall come to his
possession or knowledge or to the
possession of any other person for him
REMEDIAL LAW
b. Administer according to these rules, and, if
an executor, according to the will of the
testator, all goods, chattel, rights, credits,
and estate of the deceased which shall
come to his possession or to the
possession of any other person for him,
and from the proceeds to pay and
discharge all debts, legacies, charges on
the same, or dividends as decreed by court
c. Render a true and just account of his
administration within 1 year and when
required by court, and
d. Perform all orders of the court [Sec. 1, Rule
81]
If the testator provides in his will that the
executor shall serve without bond, or with only
his individual bond, the court may still allow him
to file a bond conditioned only to pay debts of
the testator. But the court may require of the
executor a further bond in case of change in his
circumstances or for other sufficient cause.
[Sec. 2, Rule 81]
Bonds
of
joint
executors
and
administrators
The court may take a separate bond from each
executor or administrator, or a joint bond from
all. [Sec. 3, Rule 81]
a. General Powers and Duties of
Executors and Administrators
Have access to partnership books and
property at all times
1. Have access to, and may examine and
take copies of, books and papers relating
to the partnership business
2. Examine and make invoices of the property
belonging to such partnership
3. Request the surviving partner/s to exhibit to
him all such books, papers, and property in
their hands or control [Sec. 1, Rule 84]
Failure to freely permit the exercise of these
rights, and to exhibit the books, papers, and
property may subject any partner for contempt
Keep buildings in tenantable repair
1. Maintain the houses and other structures
and fences belonging to the estate, and
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2. Deliver the same in such repair to the heirs
or devisees when directed so to do by the
court
[Sec. 2, Rule 84]
When a property is part of an estate and
subject to intestate proceedings before the
courts, the administrator may only deliver
properties of the estate to the heirs upon order
of the court. Verily, once an action for the
settlement of an estate is filed with the court,
the properties included therein are under the
control of the intestate court. And not even the
administrator may take possession of any
property that is part of the estate without prior
authority of the court. [Silverio, Jr. v. CA, G.R.
No. 178933 (2009)]
Right to possession and management of
the real and personal properties
1. So long as necessary for the payment of
the debts and the expenses of
administration [Sec. 3, Rule 84]
2. Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator [Caro v. CA,
G.R. No. L-46001 (1982)]
When the estate of a deceased is already the
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
probate court. [Estate of Olave v. Reyes, G.R.
No. L-29407 (1983)]
b. Restrictions on Powers of
Executors and Administrators
Executor or administrator chargeable with
all estate and income
Chargeable in his account with the whole of the
estate which has come into his possession, at
the value of the appraisement contained in the
inventory, with:
1. Interest
2. Profit
3. Income of such estate and
4. Proceeds of as much of the estate as is
sold by him, at the price at which it was sold
REMEDIAL LAW
[Sec. 1, Rule 85]
Prohibited from profiting by increase or
suffering loss by decrease in value
1. No executor/administrator shall profit by
the increase, or suffer loss by the decrease
or destruction, without his fault, of any part
of the estate
2. He must account for the excess (when sold
for more than appraisement)
3. If sold for less, he is not responsible for
loss, if sale justly made
4. If settled claim for less than nominal value,
he is entitled to charge in his account only
the amount actually paid on the settlement
[Sec. 2, Rule 85]
5. Not accountable for debts due the
deceased which remain uncollected
without his fault [Sec. 3, Rule 85]
Accountable for income from realty used by
him
If executor/administrator uses/occupies any
part of real estate himself, he shall account for
it
1. as may be agreed upon between him and
the parties interested, or
2. as may be adjusted by the court with the
parties’ assent.
If the parties do not agree upon the sum to be
allowed, the same may be ascertained by the
court, whose determination in this respect shall
be final. [Sec. 4, Rule 85]
Accountable if he neglects or delays to
raise or pay money
Damages sustained are considered waste, and
may be charged and allowed against him in his
account, and s/he is liable on his/her bond if
s/he
1. Neglects
a. or unreasonably delays to raise money,
by collecting debts or selling real or
personal estate of the deceased, or
b. to pay over money in his hands, and
2. The value of the estate is thereby lessened
or unnecessary cost or interest accrues, or
the persons interested suffer loss
[Sec. 5, Rule 85]
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Only necessary expenses shall be allowed
1. Amount paid by executor/administrator for
costs awarded against him shall be allowed
in his administration account, unless it
appears that the action or proceeding in
which the costs are taxed was prosecuted
or resisted without just cause, and not in
good faith. [Sec. 6, Rule 85]
2. When the executor is an attorney, he shall
not charge against estate any professional
fees for legal services rendered. [Sec. 7,
Rule 85]
Necessary expenses of administration
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for the purpose of
liquidation, payment of debts, and distribution
of the residue among persons entitled thereto
[Hermanos v. Abada, G.R. No. 13910 (1919)]
Not considered as necessary expenses
1. Expenses incurred by heir as occupant of
family home without paying rent (ex. salary
of house helper, light, water bills, gas, etc.
[De Guzman v. De Guzman-Carillo, G.R.
No. L-29276 (1978)]
2. Expenses incurred by an executor or
administrator to produce a bond [Sison v.
Teodoro, G.R. No. L-9271 (1957)]
3. The administration bond should not be
considered as part of the necessary
expenses, not being included among the
acts constituting the care, management,
and settlement of the estate [Ocampo v.
Ocampo, G.R. No. 187879 (2010)]
Attorney’s fees
When an attorney assists the administrator or
executor personally in the execution of his
trust, the liability for the payment of attorney’s
fees rests on the executor or administrator.
However, if the fees paid are beneficial to the
estate and reasonable, he is entitled to
reimbursement from the estate. [Uy Tioco v.
Imperial, G.R. No. L-29414 (1928); Quasha
Ancheta Peña and Nolasco Law Office v. LCN
Construction Corp., G.R. No. 174873 (2008)]
REMEDIAL LAW
Allowance to surviving spouse and children
The widow and minor or incapacitated children,
during the settlement of the estate, shall
receive, under the direction of the court, such
allowance as are provided by law. [Sec. 3, Rule
83]
It is the court hearing the settlement of the
estate, not the guardianship court, that should
execute the order for the payment of the
widow’s allowance considering that the
properties of the estate are within its
jurisdiction, to the exclusion of all the other
courts. [Heirs of Sy Bang v. Sy, G.R. Nos.
114217 and 150797 (2009)]
Allowances for support under Section 3, rule 83
should not be limited to the “minor or
incapacitated” children of the deceased. Article
188 of the Civil Code provides that during the
liquidation of the conjugal partnership, the
deceased’s legitimate spouse and children,
regardless of their age, civil status or gainful
employment, are entitled to provisional support
from the funds of the estate. The law clearly
limits the allowance to “widow and children”
and does not extend to grandchildren,
regardless of their minority or incapacity
[Estate of Ruiz v. CA, G.R. No. 118671 (1996)]
Executor or administrator
inventory and render account
to
make
Inventory
Rendered within 3 months of appointment and
includes an appraisal of all real and personal
estate of the deceased which has come into
his possession or knowledge [Sec. 1, Rule 83]
The usage of the word “all” in Sec. 1, Rule 83
demands the inclusion of all the real and
personal properties of the decedent in the
inventory. However, the word “all” is qualified
by the phrase “which has come into his
possession or knowledge,” which signifies that
the properties must be known to the
administrator to belong to the decedent or are
in her possession as the administrator. Sec. 1
allows no exception, for the phrase “true
inventory” implies that no properties appearing
to belong to the decedent can be excluded from
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the inventory, regardless of their being in the
possession of another person or entity. [Aranas
v. Mercado, G.R. No. 156407 (2014)]
5. Appointment
Administrator
Not included
a. Wearing apparel of surviving husband or
wife and minor children
b. Marriage bed and bedding, and
c. Such provisions and other articles as will
necessarily be consumed in the
subsistence of the family of the deceased
[Sec. 2, Rule 83]
A special administrator is an officer of the court
who is subject to its supervision and control,
expected to work for the best interest of the
entire estate, with a view to its smooth
administration
and
speedy
settlement.
[Ocampo v. Ocampo, G.R. No. 187879 (2010)]
Accounting mandatory
Within 1 year from time of receiving letters
testamentary or of administration unless court
otherwise directs [Sec. 8, Rule 85]
He shall render such further accounts as court
may require until the estate is wholly settled
[Sec. 8, Rule 85]
Sec. 8, Rule 85 requires the administrator to
render an account of his administration within
1 year from receipt of the letters testamentary
or of administration [Hilado v. CA, G.R. No.
164108 (2009)]
The fact that the heirs of the estate have
entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator [Joson
v. Joson, G.R. No. L-9686 (1961)]
Examination on oath by court
As to the correctness of his account before the
same is allowed
Except:
a. when no objection is made to the
allowance of the account, and
b. its correctness is satisfactorily established
by competent proof.
[Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors
of the estate shall have the same privilege as
the executor/administrator of being examined
on oath on any matter relating to an
administration account. [Sec. 9, Rule 85]
of
Special
The probate court is justified in appointing joint
special administrators pending determination
of the person or persons to whom letters of
administration may be issued, inasmuch as
there was a disagreement as to who should be
appointed. [Ocampo v. Ocampo, G.R. No.
187879 (2010); Heirs of Castillo v. LacuataGabriel, G.R. No. 162934 (2005)]
To reiterate, the role of a special administrator
is to preserve the estate until a regular
administrator is appointed. Given this duty on
the part of the special administrator, it would be
prudent and reasonable to appoint someone
interested in preserving the estate for its
eventual distribution to the heirs. While the
court may use its discretion, there is no logical
reason to appoint a person who is a debtor of
the estate and otherwise a stranger to the
deceased. To do so would be tantamount to
grave abuse of discretion [Manungas v. Loreto,
G.R. No. 193161 (2011)]
When appointed
a. When there is delay in granting letters
testamentary or administration by any
cause, including an appeal from allowance
or disallowance of a will [Sec. 1, Rule 80],
or
b. When the executor or regular administrator
has a claim against the estate, with respect
to the settlement or adjustment of that
claim. [Sec. 8, Rule 86]
Procedure
There must first be notice and publication.
Notice through publication of the petition is a
jurisdictional requirement even in the
appointment of a special administrator. [De
Guzman v. Angeles, G.R. No. 78590 (1988)]
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The preference laid down under Sec. 6, Rule
78 refers to the appointment of a regular
administrator, not to that of a special
administrator. [Pijuan v. De Gurrea, G.R. No.
L-21917 (1966)]
Conditions on the bond
More specifically, the bond is conditioned on
the faithful execution of the administration of
the decedent’s estate requiring the special
administrator to
a. Make and return true inventory in his
possession or knowledge
b. Render accounting when required by court
c. Deliver estate of the deceased to the
regular executor or administrator, or other
authorized person
[Sec. 4, Rule 81; Ocampo v. Ocampo, G.R. No.
187879 (2010)]
Powers and duties
a. Take possession and charge of goods,
chattels, rights, credits, and estate of
deceased, and
b. Preserve
the
same
for
executor/administrator
afterwards
appointed, and for that purpose may
commence and maintain suits as
administrator
c. May sell only such perishable and other
property as the court orders sold
d. Not liable to pay any debts of the deceased
unless so ordered by the court
[Sec. 2, Rule 80]
When powers cease
When letters testamentary/administration are
granted on the estate of the deceased
a. Special administrator shall deliver to
executor/administrator goods, chattels,
money, and estate of the deceased in his
hands.
b. The executor/administrator may prosecute
final judgment suits commenced by such
special administrator.
[Sec. 3, Rule 80]
The appointment of a special administrator lies
entirely in the discretion of the court, and is not
appealable. Not being appealable, the only
remedy against the appointment of a special
REMEDIAL LAW
administrator is certiorari under Rule 65 [Tan v.
Gedorio, G.R. No. 166520 (2008)]
Regular
administrator
Appointed by the
court in the following
instances
a. Testator fails to
name an
executor in the
will
b. The
appointment
was refused
c. The will was
disallowed
d. No will (intestate
succession)
Should pay the
debts of the estate
Order of
Appointment is final
and appealable
6. Grounds for
Administrator
Special
administrator
Appointed by the
court when
a. there is delay in
granting letters
testamentary or
administration
by any cause
b. the executor is a
claimant of the
estate, but only
to portion where
there is a claim
Cannot pay debts of
the estate unless
ordered by the court
Interlocutory and is
not appealable.
Remedy is Rule 65
petition
Removal
of
Removal of executor or administrator
Grounds
a. Neglects to
1. render his account and settle the estate
according to law, or
2. perform an order or judgment of the
court, or a duty expressly provided by
these rules
b. Absconds
c. Becomes insane, or
d. Becomes incapable or unsuitable to
discharge the trust
[Sec. 2, Rule 82]
List enumerated is not exclusive. Court is
vested with ample discretion in removal of
administrator for as long as there is evidence
of any act or omission on the part of the
administrator not conformable to or in
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disregard of rules or orders of the court which
it deems as sufficient or substantial to warrant
removal of administrator. [Festin 62, 2011 Ed.]
Examples of valid removal of an
administrator by probate court
a. Administrator who disbursed funds of
estate without judicial approval [Cotia v.
Jimenez, G.R. No. L-12132 (1958)]
b. False representation by administrator in
securing his appointment [Cobarrubias v.
Dizon, G.R. No. L-225 (1946)]
c. Administrator who holds interest adverse to
that of the estate or his conduct shows
unfitness to discharge the trust [Garcia v.
Vasquez, G.R. No. L-26615 (1970)]
d. Administrator who has physical and mental
inability and consequent unsuitability to
manage the estate [De Borja v. Tan, G.R.
No. L-6476 (1955)]
Temporary absence in the state does not
disqualify one to be an administrator of the
estate. [Gonzales v. Aguinaldo, G.R. No.
74769(1990)]
Removal of Special Administrators
The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness
and the application of the order of preference
under Section 6 of Rule 78, as would be proper
in the case of a regular administrator, do not
obtain. As long as the discretion is exercised
without grave abuse, and is based on reason,
equity,
justice,
and
legal
principles,
interference by higher courts is unwarranted.
[Ocampo v. Ocampo, G.R. No. 187879 (2010)]
Effect of removal, death, or resignation
a. The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him
b. If
there
is
no
remaining
executor/administrator, administration may
be to any suitable person
[Sec. 2, Rule 82]
REMEDIAL LAW
For
complaints
against
the
general
competence of the administrator, the proper
remedy is to seek the removal of the
administrator in accordance with Sec. 2, Rule
82. While the provision is silent as to who may
seek with the court the removal of the
administrator, a creditor, even a contingent
one, would have the personality to seek such
relief. [Hilado v. CA, G.R. No. 164108 (2009)]
Validity of acts
Lawful acts of the executor/administrator
before removal/resignation are valid. [Sec. 3,
Rule 82]
The acts of the executor or administrator, done
in good faith prior to the revocation of the
letters, will be protected and a similar
protection will be extended to rights acquired
under a previous grant of administration. [Vda.
De Bacaling v. Laguna, G.R. No. L-26694
(1973)]
Powers of new executor or administrator
a. Collect and settle the estate not
administered
b. Prosecute and defend actions commenced
by
or
against
the
former
executor/administrator, and
c. Have execution on judgments recovered in
the
name
of
the
former
executor/administrator
d. Authority to sell granted by court to former
executor or administrator may be renewed
without further notice or hearing
[Sec. 4, Rule 82]
F.
CLAIMS AGAINST
THE ESTATE
Estate burdened with lien of creditors
Upon the death of the person, all his property
is burdened with all his debts, his debts
creating an equitable lien thereon for the
benefit of the creditors. And such lien continues
until the debts are extinguished either by the
payment, prescription, or satisfaction in one of
the modes recognized by law. [Suiliong & Co.
v. Chio-Taysan, G.R. No. L-4777 (1908)]
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Purpose of presentation of claims against
estate
1. To protect the estate of the deceased
2. Executor/administrator will be able to
examine each claim, determine whether it
is a proper one which should be allowed
3. To appraise the administrator and the
probate court of the existence of the claim
so that a proper and timely arrangement
may be made for its payment in full or by
pro-rata portion in the due course of the
administration
[Estate of Olave v. Reyes, G.R. No. L-29407
(1983)]
Printed copy of the published notice shall be
filed in court within 10 days after its publication
accompanied with affidavit setting forth the
dates of first and last publication and name of
newspaper where it was printed [Sec. 4, Rule
86]
1. Time within which Claims
shall be filed; Exceptions
2. Statute of Non-Claims
General rule: Claims must be filed within the
time specified by the court in its notice which
shall not be less than 6 months nor more than
12 months from the date of the first publication
of the notice. [Sec. 2, Rule 86]
Exceptions: Belated claims
The court has discretion, for cause and upon
such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed; provided they are filed within
1 month from the expiration of such period but
in no case beyond the date of entry of the order
of distribution. [Danan v. Buencaminao, G.R.
No. L-57205 (1981); Sec. 2, Rule 86]
Note: The one-month extension does not
commence from expiration of the original
period for filing claims but from the date of the
order of the court allowing said filing. [Barredo
v. CA, G.R. No. L-17863 (1962)
Notice to creditors to be published;
Affidavit of publication
Executor/administrator shall, immediately after
the notice to creditors is issued, cause
publication of notice for 3 weeks successively
in a newspaper of general circulation in the
province, and its posting in 4 public places in
the province, and in 2 public places in the
municipality, where the decedent last resided.
[Sec. 3, Rule 86]
Significance of Notice
Publication of notice is constructive notice to
creditors and, thus, a creditor would not be
permitted to file a claim beyond the period fixed
in the notice on the bare ground that he had no
knowledge of the administration proceedings.
[Villanueva v. PNB, G.R. No. L-18403 (1963)]
General rule: Claim must be filed within the
time limited in the notice; otherwise they are
barred forever [Sec. 5, Rule 86]
Purpose is to settle the estate with dispatch,
so that the residue may be delivered to the
persons entitled thereto without their being
afterwards called upon to respond in actions for
claims [Rio y Compania v. Maslog, G.R. No. L12302 (1959), citing Tan Se Guan v. GaSiu
San, 47 Phil. 96]
The filing of a money claim against the
decedent’s estate is mandatory. The
requirement is for the purpose of protecting the
estate of the deceased by informing the
executor or administrator of the claims against
it, enabling him to examine each claim and to
determine whether it is a proper one which
should be allowed. The plain and obvious
design of the rule is the speedy settlement of
the affairs of the deceased and the early
delivery of the property to the distributees,
legatees, or heirs. [Union Bank of the
Philippines v. Santibañez, G.R. No. 149926
(2005), citing Py Eng Chong v. Herrera, G.R.
No. L-31229 (1976)]
Claims covered (exclusive)
a. Claims for money against the decedent
arising from contract
1. Express or implied
2. Due or not
3. Contingent or not
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b. Claims for funeral expenses
c. Expenses for last sickness
d. Judgment for money against decedent
[Sec. 5, Rule 86]
Statute of non-claims supersedes statute of
limitations when it comes to debts of deceased
persons. [Sikat v. Vda. De Villanueva, G.R. No.
L-35925 (1932)]
Exceptions:
a. When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Sec. 5, Rule
86]
b. Belated claims [Sec. 2, Rule 86]
Quasi-contracts and contingent claims are
included in claims that should be filed under
Rule 86, Sec. 5 [Metropolitan Bank & Trust Co
v. Absolute Management Corp., G.R. No.
170498 (2013)]
Contingent claim
One which by its nature, is necessarily
dependent upon an uncertain event for
existence or validity, which may or may not
develop into an enforceable claim. [Buan v.
Laya, G.R. No. L-7593 (1957)]
When allowed
a. When it becomes absolute
b. Presented
to
the
court
or
executor/administrator within 2 years from
the time limited for other creditors to
present their claims, and
c. Not disputed by executor/administrator
[Sec. 5, Rule 88]
If disputed, it may be proved and allowed or
disallowed by the court as the facts may
warrant [Sec. 5, Rule 88]
Where an executor/administrator commences
action, or prosecutes an action already
commenced by deceased in his lifetime, the
debtor may set forth by answer the claims he
has against decedent, instead of presenting
them independently to the settlement court,
and mutual claims may be set off against each
other in such action. If the debtor obtains a
REMEDIAL LAW
favorable judgment, the amount shall be
considered the true balance against the estate,
as though the claim had been presented
directly before the court in the administration
proceedings. [Sec. 5, Rule 86]
In a labor case where the deceased was found
to have illegally dismissed the plaintiff, the
money claims of the plaintiff who was adjudged
entitled thereto must be filed against the estate
of the deceased. [Gabriel v. Bilon, G.R. No.
146989 (2007); Sec. 20, Rule 3 in relation to
Sec. 5, Rule 86]
The specific provisions of Sec. 5, Rule 86
prevails over the general provisions of Section
11, Rule 6 of the same. The settlement of the
estate of the decedent is governed by the rules
on special proceedings, while the rules
provided for ordinary claims including Section
11, Rule 6 merely apply suppletorily.
[Metropolitan Bank & Trust Co. v. Absolute
Management Corporation, G.R. No. 170498
(2013)]
The presentation of a money claim may be
waived. [Ignacio v. Pampanga Bus Co., Inc.,
G.R. No. L-18936 (1967)]
If obligation solidary - file claim against
decedent as if he is the only debtor
If obligation joint - claim confined to the
portion belonging to the decedent [Sec. 6, Rule
86]
Where the obligation assumed by the decedent
with his wife is a solidary one, a collection case
can proceed and the demands of the creditor
may be satisfied by the widow only, even
without impleading the estate of her deceased
husband. Thus, under Article 1216 of the Civil
Code, the creditor has the right to proceed
against anyone of the solidary debtors or some
or all of them simultaneously. To require the
creditor to proceed only as against the estate
would deprive him of his substantive rights
under the Civil Code. [Boston Equity
Resources, Inc. v. CA, G.R. No. 173946
(2013)]
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Alternative remedies of a mortgage creditor
upon death of debtor
a. Abandon the security and prosecute his
claim from the estate as an ordinary
claim – creditor is deemed to have
abandoned the mortgage and he cannot
thereafter file a foreclosure suit if he fails to
recover his money claim against the estate.
b. Foreclose mortgage judicially and
prove any deficiency as an ordinary
claim – suit should be against the executor
or administrator as party defendant;
creditor may obtain deficiency judgment if
he fails to fully recover his claim.
c. Rely solely on the mortgage and
foreclose it before it is barred by
prescription without right to claim for
deficiency – includes extrajudicial
foreclosure of sale and its exercise
precludes one from recovery of any
balance of debt against the estate and
frees the estate from further liability.
[Sec. 7, Rule 86]
It must, however, be emphasized that these
remedies are distinct, independent, and
mutually exclusive from each other, thus, the
election of one effectively bars the exercise of
the others [Heirs of Maglasang v. Manila
Banking Corporation, G.R. No. 171206 (2013);
Philippine National Bank v. CA, G.R. No.
121597 (2001); Festin 79, 2011 Ed.]
3. Claim
of
Executor
Administrator against
Estate
or
the
Procedure
to
follow
if
the
executor/administrator has a claim against
the estate he represents
a. Executor/Administrator shall give notice
thereof, in writing, to the court
b. The court shall appoint a special
administrator who shall have the same
power and liability as the general
executor/administrator in the adjustment of
such claim
c. The
court
may
order
the
executor/administrator to pay to the special
REMEDIAL LAW
administrator necessary funds to defend
such claim
[Sec. 8, Rule 86]
c. How to File For a Claim
a. Deliver the claim with the necessary
vouchers to the clerk of court, and
b. Serve
a
copy
thereof
on
the
executor/administrator
[Sec. 9, Rule 86]
Additional requirements
a. If the claim be founded on a bond, bill, note,
or any other instrument – the original need
not be filed, but a copy thereof with all
indorsements shall be attached to the
claim.
On
demand,
however,
of
executor/administrator, or by order of court
or judge, the original shall be exhibited,
unless it be lost or destroyed, in which case
the claimant must accompany his claim
with affidavit or affidavits containing a copy
or particular description of the instrument
and stating its loss or destruction.
b. When the claim is due – it must be
supported by an affidavit which states
i.
the amount justly due;
ii.
that no payments have been made
thereon which are not credited; and
iii.
that there are no offsets to the
same, to the knowledge of the
affiant.
c. If the claim is not due, or is contingent,
when filed – it must also be supported by
affidavits stating the particulars thereof.
d. When the affidavit is made by a person
other than the claimant, he must set forth
therein the reason why it is not made by the
claimant.
[Sec. 9, Rule 86]
Answer by executor/administrator
Shall be filed within 15 days after a copy of the
claim has been served upon him. The
executor/administrator may interpose any
counterclaim. Said counterclaim is regarded as
compulsory, as the failure to file the same shall
bar the claim forever. [Sec. 10, Rule 86]
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REMEDIAL LAW
Executor/administrator entirely admits
claim – claim shall be submitted by the clerk to
the court who may approve the same without
hearing, but the court in its discretion before
approving the claim, may order that known
heirs, legatees, or devisees be notified and
heard. If the latter oppose upon hearing, the
court may allow 15 days to file an answer. [Sec.
11, Rule 86]
If there is still a deficiency, the debt shall be
satisfied through the contributive shares of the
devisees, legatees, or heirs who have been in
possession of portions of the estate before
debts and expenses have been settled and
paid. [Sec. 6, Rule 88]
Executor/administrator disputes claim OR
fails to file answer – clerk of court shall set the
claim for trial with notice to both parties [Sec.
12, Rule 86]
Exceptions (when realty charged first)
1. When the sale of personal property is
insufficient [Sec. 3, Rule 88]
2. When its sale will redound to the detriment
of the participants for the estate [Id.]
3. When its sale may injure the business or
other interests of those interested in the
estate [Sec. 2, Rule 89]
4. When the testator has not made sufficient
provision for payment of such debts,
expenses, and legacies [Id.]
5. When the decedent was, in his lifetime,
under contract, binding in law, to deed real
property, or an interest therein, to
beneficiary [Id., Sec. 8]
6. When the decedent during his lifetime held
real property in trust for another [Id., Sec.
9]
Judgment of court approving or disapproving a
claim shall be appealable as in ordinary cases.
[Sec. 13, Rule 86]
4. Payment of Debts
Debts paid in full if estate sufficient
1. After all money claims heard and their
amount ascertained, and
2. It appears there are sufficient assets to pay
the debts [Sec. 1, Rule 88]
The executor/administrator shall pay the same
within the time limited for that purpose. [Sec. 1,
Rule 88]
The heirs of the estate may not demand the
closing of an intestate proceeding at any time
where there is a pending case against the
administrator of the estate. The court can
rightfully hold the proceeding in abeyance until
the civil case is settled. [Dinglasan v. Chia,
G.R. No. L-3342 (1951)]
Order of preference for payment of debts
1. Portion of property designated in the will
a. If testator makes provision by will, or
designates the estate for the payment
of debts, expenses of administration, or
family expenses, they shall be paid
according to such provisions
b. If not sufficient – part of the estate not
disposed of by will shall be
appropriated [Sec. 2, Rule 88]
2. Personal property [Sec. 3, Rule 88]
3. Real property [Sec. 2, Rule 89]
General rule: Personal estate not disposed of
by will shall be first chargeable
Requisites before any of the exceptions
apply
1. The executor or administrator makes an
application with the court
2. Written notice is given to the persons
interested
3. Hearing by the court
Note, HOWEVER:
Sec. 8 should be differentiated from Secs. 2
and 4 of Rule 89, specifically requiring only the
executor or administrator to file the application
for authority to sell, mortgage or otherwise
encumber real estate for the purpose of paying
debts, expenses and legacies (Sec. 2); or for
authority to sell real or personal estate
beneficial to the heirs, devisees or legatees
and other interested persons, although such
authority is not necessary to pay debts,
legacies or expenses of administration (Sec.
4). Sec. 8, Rule 89 mentions only an
application to authorize the conveyance of
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realty under a contract that the deceased
entered into while still alive. The proper party
is one who is to be benefited or injured by
the judgment, or one who is to be entitled to
the avails of the suit [Heirs of Sandejas v.
Lina, G.R. No. 141634 (2001)]
The disposal of estate property requires judicial
approval before it could be executed. Implicit in
the requirement for judicial approval was that
the probate court could rescind or nullify the
disposition of a property under administration
that was effected without its authority [Spouses
Lebin v. Mirasol, G.R. No. 164255 (2011)]
Sale beneficial to interested persons
Upon application of the executor or
administrator and on written notice to the heirs,
devisees, and legatees, the court may
authorize the sale of the whole or a part of the
real or personal estate when beneficial to the
heirs, although not necessary to pay debts,
legacies, or expenses of administration.
Proceeds derived from the sale shall be
assigned to the persons entitled to estate in the
proper proportions
BUT the authority will not be granted if
inconsistent with the provisions of a will. [Sec.
4, Rule 89]
Sale, mortgage, or other encumbrance of
realty acquired on execution or foreclosure
The court may authorize an executor or
administrator to sale, mortgage, or otherwise
encumber real estate acquired by him on
execution or foreclosure sale, under the same
circumstances and under the same regulations
as prescribed in this rule. [Sec. 6, Rule 89]
Deed of sale, mortgage or encumbrance
The deed executed by the executor or
administrator shall be valid as if executed by
the deceased in his lifetime.
[Sec. 7-8, Rule 89]
For sales contracted by the decedent during
his lifetime, Sec. 8, Rule 89 applies. In such
cases, the court having jurisdiction of the
estate may, on application for that purpose,
REMEDIAL LAW
authorize the executor or administrator to
convey such property according to such
contract, or with such modifications as are
agreed upon by the parties and approved by
the court. [Liu v. Loy, G.R. No. 145982 (2003)]
Court approval is required in any disposition if
the decedent’s estate per Rule 89. Reference
to judicial approval, however, cannot adversely
affect the substantive rights of heirs to dispose
of their own pro indiviso shares in the coheirship or co-ownership. In other words, they
can sell their rights, interests or participation in
the property under administration. [Heirs of
Spouses Sandejas v. Lina, G.R. No. 141634
(2001)]
OPPOSITOR MAY PREVENT SALE BY
GIVING BOND
The authority to sell, mortgage, or otherwise
encumber real or personal estate shall not be
granted if any person interested in the estate
gives a bond, in a sum fixed by the court. [Sec.
3, Rule 89]
Conditions of bond
To pay debts, expenses of administration, and
legacies within such time as court directs [Id.]
Who may claim on the bond
Such bond shall be for security of creditors, as
well as of executor/administrator, and may be
prosecuted for the benefit of either [Id.]
REGULATION FOR GRANTING AUTHORITY
TO SELL, MORTGAGE, OR OTHERWISE
ENCUMBER ESTATE
a. The executor/administrator shall file a
written petition setting forth
1. Debts due from deceased, expenses
for administration, legacies
2. Value of personal estate
3. Situation of estate to be sold,
mortgaged, encumbered, and
4. Such other facts showing that sale etc.,
is necessary or beneficial
b. The court will fix the time and place for
hearing such petition and cause notice to
be given personally or by mail to persons
interested, and by publication if deemed
proper
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The
court
may
require
the
executor/administrator to give additional
bond conditioned on an accounting for
proceeds of sale, etc.
d. The court may authorize sale to be public
or private
e. If estate is to be sold at auction, mode of
giving notice shall be governed by
provisions concerning notice of execution
sale
f. Certified copy of the order of the court, plus
deed of executor/administrator for real
estate sold, mortgaged, or encumbered
shall be registered in registry of deeds
where property is located
[Sec. 7, Rule 89]
c.
Under Sec. 7, Rule 89, only the executor or
administrator of the estate may be authorized
by the intestate court to mortgage real estate
belonging to the estate. Thus, the order of the
estate court authorizing the heirs to mortgage
the realty of the estate is a nullity. [Orola, et al.
v. The Rural Bank of Pontevedra, G.R. No.
158566 (2005)]
Settled is the rule that when an order
authorizing the sale or encumbrance of real
property was issued by the testate or intestate
court without previous notice to the heirs,
devisees, and legatees as required by the
Rules, it is not only the contract itself which is
null and void but also the order of the court
authorizing the same. [Pahamotang v. PNB,
G.R. No. 156403 (2005)]
CONTINGENT CLAIMS
Estate to be retained to meet contingent
claims
If court is satisfied that a contingent claim is
valid, it may order the executor/administrator to
1. Retain in his hands sufficient estate for the
purpose of paying such contingent claim
when it becomes absolute
2. If estate insolvent - retain a portion equal
to the dividend of the other creditors [Sec.
4, Rule 88]
Payment of contingent claim
1. If claim becomes absolute within 2
years limited for creditors and allowed
REMEDIAL LAW
by the court - Creditor shall receive
payment to the same extent as the other
creditors
if
estate
retained
by
executor/administrator is sufficient.
2. Claim not presented after becoming
absolute within 2 year period and
allowed by the court – Assets retained
after claims have been paid shall be
distributed to persons entitled by court
order; but assets already distributed may
still be applied to the payment of the
established claim, and the creditor may
maintain an action against the distributees
to recover the debt, and such distributees
and their estates shall be liable for the debt
in proportion to the estate they have
respectively received from property of
deceased. [Sec. 5, Rule 88]
Liability of heirs and distributees
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate. [Gov’t of P.I. v.
Pamintuan, G.R. No. L-33139 (1930)]
INSOLVENT DECEDENT
Order of payment if estate is insolvent
Executor/administrator shall pay the debts
against the estate, observing Articles 1059 and
2239 to 2251 of the Civil Code (Preference of
credits). [Sec. 7, Rule 88]
Dividends to be paid in proportion to claims
If assets are not sufficient to pay credits of any
one class of creditors after paying preferred
credits, each creditor within such class shall be
paid a dividend in proportion to his claim. No
creditor of any one class shall receive any
payment until those of the preceding class are
paid. [Sec. 8, Rule 88]
Insolvent non-resident
His estate found in Philippines shall be so
disposed of in a manner that will ensure that his
creditors here and elsewhere may receive
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each an equal share, in proportion to their
respective credits. [Sec. 9, Rule 88]
Insolvent resident with foreign creditors
and foreign claims proven in another
country
If executor/administrator in Philippines had
1. knowledge of presentation of such claims
in such country, and
2. opportunity to contest such allowance
The court shall
1. Receive a certified list of such claims, when
perfected in such country
2. Add the same to the list of claims proved
against the deceased person in the
Philippines so that a just distribution of the
whole estate may be made equally among
all its creditors according to their respective
claims.
[Sec. 10, Rule 88]
Principle of reciprocity
The benefit of this and preceding sections shall
not be extended to creditors in another country
if property of the deceased there found is not
equally apportioned to creditors residing in
Philippines and other creditors, according to
their respective claims [Sec. 10, Rule 88]
REMEDIAL LAW
When a disputed claim is finally settled, the
court shall order the claim to be paid out of
assets retained to the same extent and in the
same proportion with the claims of other
creditors.
[Sec. 12, Rule 88]
Instances when court may make further
orders for distribution of assets
1. If whole of debts not paid on first
distribution, and
2. If:
a. Whole assets not distributed, or
b. Other assets afterwards come to hands
of executor/administrator
[Sec. 13, Rule 88]
Creditors to be paid in accordance with
terms of order
When an order is made for distribution of
assets
among
creditors,
executor/
administrator shall, as soon as the time of
payment arrives, pay creditors the amounts of
their claims, or the dividend thereon, in
accordance with the terms of such order [Sec.
14, Rule 88]
Time for paying debts and legacies
General rule: Not exceeding 1 year in the first
instance
ORDER FOR PAYMENT OF DEBTS
Before expiration of time limited for payment of
the debts, court shall order
1. payment, and
2. distribution of assets received by the
executor/administrator for that purpose
among the creditors, as the circumstances
of the estate require and in accordance
with the provisions of this rule.
[Sec. 11, Rule 88]
Exception: Court may extend the period, on
application of the executor/administrator after
hearing on notice to all interested persons, on
the following conditions
1. Extension must not exceed 6 months for a
single extension, and
2. The whole period allowed shall not exceed
2 years
[Sec. 15, Rule 88]
If appeal taken from a decision of the court
concerning a claim
The court may
1. Suspend order for payment, or
2. Order distribution among creditors whose
claims are definitely allowed, leaving in the
hands of executor/administrator sufficient
assets to pay the claim disputed and
appealed
Extension of time for paying debts and
legacies
When executor/administrator dies, and a new
administrator of same estate is appointed,
court may extend time
1. Not exceeding 6 months at a time, and
2. Not exceeding 6 months beyond the time
which court might have allowed to original
executor/administrator,
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and notice shall be given of time and place for
hearing such application, as required in the last
preceding section.
[Sec. 16, Rule 88]
Writ of execution
General rule: The probate court does not have
the power to issue writs of execution. A writ of
execution is not the proper procedure for the
payment of debts and expenses of
administration. The proper procedure is for the
court to order the sale of personal estate or the
sale of mortgaged of real property of the
deceased and all debts or expenses of
administration should be paid out of the
proceeds of the sale or mortgage [Aldamiz v.
Judge of CFI-Mindoro, G.R. No. L-2360 (1949)]
Exceptions:
1. To satisfy the distributive shares of
devisees, legatees, and heirs in
possession of the decedent’s assets, or
2. To enforce payment of expenses of the
partition, or
3. To satisfy the costs when a person is cited
for examination in probate proceedings
[Festin 86, 2011 Ed.]
G.
ACTIONS BY AND
AGAINST EXECUTORS AND
ADMINISTRATORS
REMEDIAL LAW
against the executor/administrator. [Sec. 1,
Rule 87]
When an accused, a doctor, died pending
appeal of his conviction in a case arising from
the death of his patient, his criminal liability is
extinguished. However, the recovery of the civil
liability subsists as the same is not based on
delict but by contract and the reckless
imprudence he was guilty of. If the same act or
omission complained of arises from quasidelict, as in this case, a separate civil action
must be filed against the executor or
administrator of the estate of the accused
pursuant to Sec. 1, Rule 87. [Cabugao v.
People, G.R. Nos. 163879 and 165805 (2014)]
Executor or administrator may bring or
defend actions which survive death
For recovery or protection of property or rights
of deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to
other wrongs by which personal estate is
injured or diminished. [Aguas v. Llenos, G.R.
No. L-18107 (1962)]
Mortgage due to the decedent’s estate may
be foreclosed by the executor/administrator
[Sec. 5, Rule 87]
against
General rule: Heirs may not sue for recovery
of
property
of
the
estate
against
executor/administrator during pendency of
administration proceedings. [Sec. 3, Rule 87;
Romero v. CA, G.R. No. 188921 (2012)]
Actions that may be brought against
executor or administrator (actions that
SURVIVE the decedent’s death)
a. Recovery of real or personal property, or
interest therein, from estate
b. Enforcement of a lien thereon, and
c. Recovery of damages for an injury to a
person or property, real or personal
[Sec. 1, Rule 87; Sarsaba v. Vda. De Te, G.R.
No. 175910 (2009)]
Exceptions:
a. If executor or administrator is unwilling to
bring a suit
b. When the executor or administrator is
made a party defendant where he is
alleged to have participated in the act
complained of
c. Where there is no appointed administrator
[Festin 81-82, 2011 Ed.]
1. Actions by
Executors
and
NO action upon a claim for the recovery of
money or debt or interest shall be commenced
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Proceedings when property concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
a. Having
concealed,
embezzled,
or
conveyed away any of the money, goods,
or chattels of the deceased, or
b. Having in his possession or having
knowledge of
1. any deed, conveyance, bond, contract,
or other writing which contains
evidence of or tends or discloses the
right, title, interest, or claim of
deceased to real or personal estate, or
2. last will and testament of deceased,
to appear before it and be examined on oath on
the matter of complaint by the executor or
administrator, heir, legatee, creditor or other
individual interested in the estate of the
deceased to the court having jurisdiction of the
estate.
If the person so cited refuses to appear, or to
answer on such examination or such
interrogatories as are put to him, the court may
punish him for contempt, and may commit him
to prison until he submits to the order of the
court. [Sec. 6, Rule 87]
Purpose
Similar to Sec. 6, Rule 87, Sec. 7 of the same
rule is merely in the nature of fact-finding
inquiries. It is intended to elicit evidence
relative to estate properties. The RTC which
has jurisdiction over the administration and
settlement of the estate has limited jurisdiction
and is without authority to resolve issues of
ownership with finality especially when third
persons are involved. Separate actions should
be instituted by the administrator for the
purpose. [Punongbayan v. Punongbayan, G.R.
No. 156842 (2004)]
Double Value Rule
A person who embezzles or alienates any of
the money, goods, chattels, or effects of the
deceased before the granting of letters
testamentary or of administration of the estate,
is liable for double the value of the property
sold, embezzled, or alienated, to be recovered
in favor of the estate [Sec. 8, Rule 87]
REMEDIAL LAW
When executor or administrator may bring
action for recovery of property fraudulently
conveyed by deceased
a. There is a deficiency of assets for payment
of debts and expenses of administration
and the deceased, in his lifetime, had
conveyed real or personal property, right or
interest therein, or debt or credit with intent
to defraud his creditors or avoid any right,
debt or duty, or
b. Deceased had so conveyed such property,
right, interest, debt or credit that by law the
conveyance would be void as against the
creditors and the subject of the attempted
conveyance would be liable to attachment
by any of them in his lifetime
[Sec. 9, Rule 87]
Process of recovery by the executor or
administrator of property fraudulently
conveyed
a. Creditors apply for the commencement of
the action
b. Creditors making the application pay such
part of the costs and expenses, or give
security
therefor
to
the
executor/administrator, as the court deems
equitable
c. Executor/administrator commences and
prosecutes to final judgment an action for
the recovery of such property, right,
interest, debt or credit for benefit of the
creditors
[Sec. 9, Rule 87]
2. Requisites before Creditor
may bring an Action for
Recovery
of
Property
Fraudulently Conveyed by the
Deceased
1. There is a deficiency of assets
2. The deceased in his lifetime had made or
attempted such a conveyance with intent to
defraud creditors or to avoid any right,
debt, or duty
3. The executor or administrator has not
commenced the action provided in Sec. 9,
Rule 87
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4. The creditor has filed a bond executed to
the executor or administrator in an amount
approved by the judge, conditioned to
indemnify the executor or administrator
against the costs and expenses incurred by
reason of such action
a. If
executor/administrator
failed
to
commence such action
1. Action must be
i.
With court permission
ii.
In
the
name
of
executor/administrator
2. Creditor must file bond, conditioned to
indemnify the executor/administrator
against the cost and expenses incurred
by such action
b. If conveyance or attempt is made in favor
of executor/administrator
1. No need for court permission
2. No need for bond
3. Action in the name of all creditors
Such creditor shall have a lien upon any
judgment recovered by him in the action for
such costs and other expenses incurred
therein as the court deems equitable.
[Sec. 10, Rule 87]
H.
DISTRIBUTION AND
PARTITION
Before there could be a distribution of the
estate, the following stages must be
followed
1. Liquidation of estate i.e. payment of
obligations of deceased
2. Declaration of heirs - to determine to
whom the residue of the estate should be
distributed
a. Determination of the right of a natural
child
b. Determination of proportionate shares
of distributees
Afterwards, the residue may be distributed and
delivered to the heirs [3-A Herrera 173, 1996
Ed.]
Payment of the inheritance tax, per se, does
not settle the estate of a deceased person.
REMEDIAL LAW
[Agtarap v. Agtarap, G.R. Nos. 177099 and
177192 (2011)]
1. Liquidation
General rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral
expenses,
and
expenses
of
administration, allowance to widow, and
inheritance tax chargeable to the estate have
been paid.
Exception: If the distributees give a bond
conditioned for the payment of said obligations.
[Sec. 1, Rule 90; Estate of Ruiz v. CA, G.R. No.
118671 (1996)]
The part distributed must not be subject to any
controversy or appeal. [Sec. 2, Rule 109]
2. Project of Partition
A project of partition is merely a proposal for
the distribution of the hereditary estate which
the court may accept or reject. [Reyes v.
Barretto-Datu, G.R. No. L-17818 (1967); Vda.
De Kilayko v. Tengco, G.R. Nos. L-45425 and
L-45965 (1992)]
The executor/administrator has no duty to
prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
When order for distribution of residue made
Court makes that distribution of the estate and
determines the persons entitled thereto
a. On application of executor/administrator or
of person interested in estate
b. Hearing upon notice
Court shall assign the residue of the estate to
the persons entitled to the same, naming them
and the proportions, or parts, to which each is
entitled.
Such persons may demand and recover their
respective
shares
from
the
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SPECIAL PROCEEDINGS
executor/administrator, or any other person
having the same in his possession.
If there is a controversy as to who are lawful
heirs such shall be heard and decided as in
ordinary cases [Sec. 1, Rule 90]
The order of a probate court approving the
compromise had the effect of directing the
delivery of the residue of the estate to the
persons entitled thereto under the compromise
agreement. As such, it brought to a close the
intestate proceedings and the probate court
lost jurisdiction over the case, except only as
regards the compliance and the fulfillment of
the parties of their respective obligations under
the compromise agreement. [Reyes-Masugas
v. Reyes, G.R. No. 174835 (2010)]
Court may determine questions as to
advancement made by decedent [Sec. 2,
Rule 90]
Although it is within the jurisdiction of the court
whether or not to permit the advance
distribution of the estate, its exercise should be
qualified by the following: (1) only part of the
estate that is not affected by any pending
controversy or appeal may be subject of
advance distribution (Sec. 2, Rule 109); and (2)
the distributees must post a bond, fixed by the
court, conditioned for the payment of
outstanding obligations of the estate. (par. 2,
Sec. 1, Rule 90) [Quasha Ancheta Peña and
Nolasco Law Office v. LCN Construction
Corporation, G.R. No. 174873 (2008)]
Effect of final decree of distribution
Title to the property of the estate vests in the
distributees. [De Kilayko v. Tengco, G.R. No.
45425 (1992)]
The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence. [Vda. De Alberto v. CA, G.R. No.
L-29759 (1989)]
REMEDIAL LAW
3. Remedy of an Heir Entitled to
Residue but Not Given His
Share
The better practice for the heir who has not
received his share is to
a. Demand his share through a proper motion
in the same probate or administrative
proceedings, or
b. Motion for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action
[Guilas v. Judge of the CFI of Pampanga, G.R.
No. L-26695 (1972)]
BUT where special proceedings had been
instituted but had been finally closed and
terminated, however, or if a putative heir has
lost the right to have himself declared in the
special proceeding as a co-heir and he can no
longer ask for its re-opening, then an ordinary
civil action can be filed for his declaration as
heir in order to bring about the annulment of the
partition or distribution or adjudication of a
property or properties belonging to the estate
of the deceased. [Portugal v. Portugal-Beltran,
G.R. No. 155555 (2005)]
4. Instances
when
Court may Issue
Execution
Probate
Writ of
General rule: writ of execution is not allowed
in probate proceedings [Vda de. Valera v.
Ofilada, G.R. No. L-27526 (1974)]
Exceptions:
a. To satisfy the contributive shares of
devisees, legatees and heirs in possession
of the decedent’s assets [Sec. 6, Rule 88]
b. To enforce payment of expenses of
partition [Sec. 3, Rule 90]
c. To satisfy the costs when a person is cited
for examination in probate proceedings
[Sec. 13, Rule 142]
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When does a probate court lose jurisdiction
of an estate under administration?
The probate court loses jurisdiction of an estate
under administration only after payment of all
debts, and the remaining estate delivered to
the heirs entitled to receive the same [Guilas v.
Judge of the CFI of Pampanga, G.R. No. L26695 (1972)]
I.
property or
portion
affected by
the trust is
situated
[Sec. 1, Rule 98]
TRUSTEES
Trust is a confidence reposed in one person,
called the trustee, for the benefit of another
called the cestui que trust, with respect to the
property held by the former for the benefit of
the latter. [De Leon 254, 2015]
Note: This rule only applies to express trusts
and not implied trusts which arise by operation
of law [2 Regalado 148, 2004 Ed.]
1. Distinguish
Trustee
Executor/Administrator
and
Executor/
Administrator
Accounts are not under
oath and shall be filed
Accounts must be within 1 year from the
under oath and time of receiving letters
filed at least once testamentary or of
a year [Sec. 6(c), administration, and as
Rule 98]
the court may require,
until the estate is wholly
settled [Sec.8, Rule 85]
Court which has
jurisdiction:
a. RTC in which
will was
allowed if
Court which has
appointed to
jurisdiction may be the
carry into
RTC or MTC
effect the
[Sec. 19 and 33, B.P.
provisions of
129]
a will
b. RTC of
province in
which
Trustee
REMEDIAL LAW
May
sell
or
encumber real or
personal property
of estate held in
trust if necessary
or expedient upon
order of the court
on petition and
after due notice
and hearing
[Sec. 9, Rule 98]
Page 302 of 525
Personal property may,
upon order, be sold
a. To pay debts,
expenses, or
legacies, or
b. If it appears
necessary for
preservation of the
property [Sec. 1,
Rule 89], or
c. If sale of whole or
part will be
beneficial to heirs,
devisees, legatees
and other
interested persons
and is not
inconsistent with
the provisions of
the will [Sec. 4,
Rule 89]
Real property may,
upon order, be sold,
mortgaged,
encumbered to pay
debts
a. When personal
estate is
insufficient to pay
debts, or
b. Where
1. Sale of
personal estate
may injure
business of
persons
interested in
estate; and
2. Property
appropriated
by testator in
will is
insufficient to
pay debts
U.P. LAW BOC
SPECIAL PROCEEDINGS
[Sec. 2, Rule 89]
Appointed
to
carry into effect
the provisions of a
will or written
instrument
May be exempted
from filing of bond
if requested by
a. testator, and
b. all persons
beneficially
interested in
the trust,
being of full
age
[Sec. 5, Rule 98]
Appointed by court to
settle estate of a
decedent
Not exempted from
filing of bond even if
such exemption is
provided in the will;
However, bond is only
conditioned
upon
payment of debts
[Sec. 2, Rule 81]
A trustee, like an executor/administrator, holds
an office of trust, particularly when the trustee
acts as such under judicial authority
[Trusteeship of the Minors Benigno, Angela
and Antonio Perez y Tuazon, G.R. Nos.
L16185-86 (1962)]
The duties of an executor/administrator are
however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
[Araneta v. Perez, G.R. No. L-16962 (1962)]
A trustee does not acquire ownership of the
assets entrusted to him but merely manages it
for the benefit of the beneficiary. [Home
Guaranty Corp. v. R-II Builders, Inc., G.R. No.
192649 (2011)]
2. Conditions of the Bond
The following conditions shall be deemed to be
part of the bond:
a. Inventory
The trustee will make and return to court,
at such time as it may order, a true
inventory of all real and personal estate
belonging to him as trustee, which at time
of the making of such inventory shall have
come to his possession or knowledge.
b. Faithful management
REMEDIAL LAW
He will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the
will of the testator or the provisions of
instrument or order under which he is
appointed.
c. Accounting
He will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by court, a true
account of the property in his hands and of
the management and disposition thereof,
and will render such other accounts as the
court may order.
d. Settlement of account and delivery of
estate
At expiration of his trust, he will settle his
account in court and pay over and deliver
all the estate remaining in his hands, or due
from him on such settlement, to the person
or persons entitled thereto.
[Sec. 6, Rule 98]
Effect of neglect to file bond
A trustee who neglects to file a bond shall be
considered to have declined or resigned the
trust [Sec. 5, Rule 98]
3. Requisites for the Removal
and Resignation of a Trustee
Requisites for the Removal of a Trustee
a. Petition by parties beneficially interested
b. Due notice to the trustee
c. Hearing
d. Presence of any of the grounds of removal
[Sec. 8, Rule 98]
Requisites Resignation of a Trustee
a. Trustee resigns
b. The court deems it proper to allow the
resignation [Sec. 8, Rule 98]
4. Grounds for the Removal and
Resignation of a Trustee
Grounds for removal
a. Removal appears essential in the interests
of petitioners
b. Trustee is
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SPECIAL PROCEEDINGS
1. insane
2. incapable of discharging his trust, or
3. evidently unsuitable
[Sec. 8, Rule 98]
Resignation
He may resign his trust if it appears to the court
proper to allow such resignation [Sec. 8, Rule
98]
5. Extent of Authority of Trustee
a. Territoriality of authority of trustee
The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was
appointed [3-A Herrera 250, 1996 Ed.]
b. Compliance with the trust instrument
In the execution of trusts, the trustee is bound
to comply with the directions contained in the
trust instrument defining the extent and limits of
his authority, and the nature of his power and
duties. [De Leon 261, 2015]
J.
ESCHEAT
Escheat is a proceeding where the real and
personal property of a person deceased in
Philippines, who dies without leaving any will
and without any legal heirs, becomes the
property of the State [Municipal Council of San
Pedro v. Colegio de San Jose, G.R. No. L45460 (1938)]
It is an incident or attribute of sovereignty and
rests on the principle of ultimate ownership by
the state of all property within its jurisdiction
[Rellosa v. Gaw Chee Hun, G.R. No. L-1411
(1953)]
REMEDIAL LAW
may be instituted and carried to judgment
without personal service upon the depositors or
other claimants. Jurisdiction is secured by the
power of the court over the res. Consequently,
a judgment of escheat is conclusive upon
persons notified by advertisement, as
publication is considered a general and
constructive notice to all persons interested
[RCBC v. Hi-Tri Development Corp., G.R. No.
192413 (2012)]
1. When to File
Three instances of escheats
a. When a person dies intestate leaving
property in the Philippines leaving no heir
[Sec. 1, Rule 91]
b. Reversion proceedings in alienations in
violation of Constitution or other statute
[Sec. 5, Rule 91]
c. Unclaimed Balances Act [Act No. 3936, as
amended by PD 679] – dormant accounts
for 10 years shall be escheated
An action for reversion or escheat of lands sold
to aliens disqualified from acquiring lands
under the Constitution may be initiated by the
Office of the Solicitor General. However, where
the transferees are Filipino citizens, escheat
proceedings can no longer prosper [Republic v.
Register of Deeds of Roxas City, G.R. No.
158230 (2008)]
Where to file
a. If Resident – RTC of the province where
the deceased last resided
b. If Non-resident – RTC of the place where
his estate is located [Sec. 1, Rule 91]
c. Actions for reversion or escheat of
properties alienated in violation of the
Constitution or of any statute — in province
where land lies in whole or in part [Sec. 5,
Rule 91]
d. Unclaimed balances – RTC of the province
or city where the bank, building, loan
association or trust corporation is located
[Sec. 3, Act No. 3936, as amended by PD
679]
Escheat proceedings are actions in rem,
whereby an action is brought against the thing
itself instead of the person. Thus, an action
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2. Requisites
Petition
SPECIAL PROCEEDINGS
for
Filing
of
a. A person died intestate
b. He left no heirs or persons by law entitled
to the same
c. Deceased left properties
[City of Manila v. Archbishop of Manila, G.R.
No. L-10033 (1917); Sec. 1, Rule 91]
Procedure
Solicitor General or his representative in
behalf of the Republic of Philippines files the
petition [Sec. 1, Rule 91]
↓
If petition is sufficient in form and substance,
court shall make an order fixing date and
place for hearing, which shall not be more
than 6 months after entry of order [Sec. 2,
Rule 91]
↓
Court shall direct a copy of order to be
published before the hearing at least once a
week for 6 consecutive weeks in some
newspaper of general circulation published
in the province, as the court shall deem best
[Sec. 2, Rule 91]
↓
Court shall hear the case and judge whether
or not the estate shall be escheated [Sec. 3,
Rule 91]
↓
Property escheated will be assigned
a. If personal property – to the municipality
or city where the deceased last resided
b. If real property – to the municipalities or
cities, respectively, in which the same is
situated
c. If the deceased never resided in
Philippines – whole estate may be
assigned to the respective municipalities
or cities where the same is located
Such estate shall be for the benefit of public
schools, and public charitable institutions
and centers in said municipalities or cities.
Court may order, upon motion or motu
propio, that a permanent trust be
REMEDIAL LAW
established so that only the income from the
property shall be used [Sec. 3, Rule 91]
The right of escheat may be waived, either
expressly or impliedly [Roman Catholic
Archbishop of Manila v. Monte de Piedad, et
al., G.R. No. L-45496 (1939)]
3. Remedy
of
Respondent
against Petition; Period for
Filing a Claim
Remedies of heir if government initiates
escheat
1. Participate in the proceeding; file a written
opposition/comment
2. File a motion to dismiss
3. File a petition to annul judgement
Period to file a claim to the estate
Within 5 years from date of judgment;
otherwise, barred forever [Sec. 4, Rule 91]
By whom
Devisee, legatee, heir, surviving spouse, or
other person entitled to such estate [Sec. 4,
Rule 91]
Effect of claim by one who is entitled to the
estate
Possession of and title to the estate shall be
given. If estate has already been sold, then the
city/municipality shall be accountable for the
proceeds, less reasonable charges for care of
estate; but a claim not made within 5 years
shall be forever barred [Sec. 4, Rule 91]
K.
GUARDIANSHIP
Guardianship
The power of protective authority given by law
and imposed on an individual who is free and
in the enjoyment of his rights, over one whose
weakness on account of his age or other
infirmity renders him unable to protect himself
[3-A Herrera 193, 1996 Ed.]
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SPECIAL PROCEEDINGS
Guardian
A person lawfully invested with power and
charged with the duty of taking care of a person
who for some peculiarity or status or defect of
age, understanding or self-control is
considered incapable of administering his own
affairs [3-A Herrera 194, 1996 Ed.]
Basis: parens patriae
It is the State’s duty to protect the rights of
persons who because of age/incapacity are in
an unfavorable position vis-à-vis other parties.
Unable as they are to take due care of what
concerns them, they have the political
community to look after their welfare [Nery v.
Lorenzo, G.R. No. L-23096 (1972)]
Kinds of guardians
1. Legal Guardian – deemed as guardian by
provision of law, without need of court
appointment [Art. 225, FC]
2. Guardian ad Litem – appointed by court to
prosecute or defend a minor, insane or
person declared to be incompetent, in a
court action
3. Judicial Guardian – appointed by the court
in pursuance to law, as guardians for
insane persons, prodigals, minor heirs of
deceased war veterans and other
incompetent persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property)
[2 Regalado 118, 2004 Ed.]
Note: Rules 92-97 are now only applicable to
guardianship over incompetent persons who
are not minors.
Guardianship over minors is governed by A.M.
No. 03-02-05 SC or Rule on Guardianship of
Minors.
Who are incompetent persons
1. Those suffering from the penalty of civil
interdiction
2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb people who are unable to
read and write
REMEDIAL LAW
5. Those of unsound mind even though they
have lucid intervals
6. Persons by reason of age, disease, weak
mind, and other similar causes, cannot,
without outside aid, take care of
themselves and manage their property,
thereby becoming an easy prey for deceit
and exploitation
[Sec. 2, Rule 92]
A finding that a person is incompetent should
be anchored on clear, positive and definitive
evidence. Where the sanity of a person is at
issue, expert opinion is not necessary and that
the observations of the trial judge coupled with
evidence establishing the person’s state of
mental sanity will suffice [Oropesa v. Oropesa,
G.R. No. 184528 (2012)]
1. Venue
Resident incompetent: MTC/RTC where the
incompetent resides, depending on the value
of the estate
Non-resident incompetent: MTC/RTC where
the incompetent’s property of a part thereof is
situated, depending on the value of the estate
[Sec. 1, Rule 92]
Resident minor: Family Court of the province
or city where the minor actually resides
Non-resident minor: Family Court of the
province or city where his property or any part
thereof is situated
[Sec. 3, A.M. No. 03-02-05-SC]
2. Appointment
of
Guardians
Who may file
Any
a. Relative;
b. Friend;
c. Other person on behalf of a resident
incompetent who has no parent or lawful
guardian
d. Officer of the Federal Administration of the
US in the Philippines in favor of a ward; or
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e. Director of Health in favor of an insane
person who should be hospitalized, or of an
isolated leper
[Sec. 1, Rule 93]
Procedure
Filing of petition [Sec. 1, Rule 93]
↓
Court issues order setting time for hearing
[Sec. 3, Rule 93]
↓
Reasonable notice to the incompetent and
persons mentioned in the petition
Notice by publication or otherwise if
incompetent is a nonresident [Sec. 3, Rule
93]
↓
Filing of written opposition [Sec. 4, Rule 93]
↓
Hearing where the alleged incompetent
must be present if able to attend [Sec. 5,
Rule 93]
↓
If person in question is incompetent, court
appoints a suitable guardian of his person or
estate, or both [Sec. 6, Rule 93]
↓
Final orders and judgments shall be served
upon the civil registrar of the municipality or
city where the incompetent resides or where
his property or part thereof is situated [Sec.
8, Rule 93]
The objectives of a hearing on a petition for
appointment of a guardian under Rule 93 is for
the court to determine: (a) whether a person is
indeed a minor or an incompetent who has no
capacity to care for himself and/or his
properties; and (b) who is most qualified to be
appointed as his guardian. Thus, creditors of
the minor or the incompetent need not be
identified or notified. This is because their
presence is not essential to the proceedings for
appointment of a guardian [Alamayri v. Pabale,
G.R. No. 151243 (2008)]
REMEDIAL LAW
3. General Powers and Duties of
Guardians
1. Care and custody of person of his ward and
management of his estate, or
2. Management of estate only
3. Management of property within Philippines
(in case of non-resident ward)
[Sec. 1, Rule 96]
Specific duties
1. To pay just debts of ward out of
a. Personal estate and income of his real
estate of the ward;
b. If (a) is not sufficient, real property of
ward upon obtaining an order for its
sale or encumbrance [Sec. 2, Rule 96]
2. To settle all accounts of his ward [Sec. 3,
Rule 96]
3. To demand, sue for, and receive all debts
due him, or, with the approval of the court,
compound for the same and give
discharges to debtor, on receiving a fair
and just dividend of estate and effects
[Sec. 3, Rule 96]
4. To appear for and represent ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Sec. 3, Rule 96]
5. To manage property of ward frugally and
without waste, and apply income and
profits thereon, insofar as may be
necessary, to comfortable and suitable
maintenance of ward and his family. If such
income and profits be insufficient for that
purpose, to sell or encumber the real
estate, upon being authorized by the court
to do so, and apply proceeds to such
maintenance [Sec. 4, Rule 96]
6. To assent to partition of real or personal
property owned by the ward jointly or in
common with others, upon authority
granted by the court,
a. After hearing
b. Notice to relatives of ward, and
c. Careful investigation as to the
necessity and propriety of proposed
action [Sec. 5, Rule 96]
7. To submit to court a verified sworn
inventory of the property of the ward
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a. Within 3 months
1. after appointment, and
2. after the discovery, succession or
acquisition of property of the ward
not included in the inventory, and
b. Annually [Sec. 7, Rule 96]
8. To render sworn account to court for
settlement and allowance
a. Annually after appointment, which may
be compelled upon application of an
interested person [Sec. 7-8, Rule 96]
b. As often as may be required after one
year from appointment [Sec. 8, Rule
96]
Expenses and compensation allowed
Guardian, other than a parent, shall be allowed
1. his reasonable expenses incurred in
execution of his trust, and
2. compensation for his services as court
deems just, not exceeding 15 per centum
of net income of ward [Sec. 8, Rule 96]
Embezzlement,
concealment,
or
conveyance of ward’s properties
Upon complaint of
1. Guardian or ward, or
2. Any person having actual or prospective
interest in property of ward as creditor, heir,
or otherwise
REMEDIAL LAW
Exception: Court may direct delivery of
property to the guardian only in extreme cases,
where the right or title of the ward is clear and
indisputable or where his title thereto has
already been judicially decided [Cui v. Piccio,
G.R. L-5131 (1952)]
SELLING AND ENCUMBERING THE
PROPERTY OF THE WARD
Guardian may present a verified petition to
court by which he was appointed for an order
authorizing sale or encumbrance of estate
Grounds
1. When income of estate under guardianship
is insufficient to maintain ward and his
family, or
2. When it appears that it is for the benefit of
the ward
[Sec. 1, Rule 95]
Sale must first be confirmed by court and until
such confirmation, not even equitable title
passes [3-A Herrera 222, 1996 Ed.]
Properties of a ward can only be sold under
authority of the guardianship court. Without
such authority, any sale would necessarily be
illegal. [De Pua v. San Agustin, G.R. No. L27402 (1981)]
Court may cite anyone suspected of having
embezzled, concealed, or conveyed away any
1. Money, goods, or interest, or
2. Written instrument,
to appear for examination touching such
money, goods, interest, or instrument and
make such orders to secure estate [Sec. 6,
Rule 96]
Contents of order for sale or encumbrance
1. Causes why sale or encumbrance is
necessary or beneficial
2. Manner of sale (public or private)
3. Time and manner of payment
4. Security, if payment deferred
5. Additional bond from guardian, if required
[Sec. 4, Rule 95]
General rule: Purpose of the proceeding is to
secure evidence from persons suspected of
embezzling, concealing or conveying any
property of the ward so as to enable the
guardian to institute the appropriate action to
obtain the possession of and secure title to said
property. The court can neither determine
ownership of the property claimed to belong to
the ward nor order its delivery.
Duration of order of sale or encumbrance
No order of sale shall continue in force for more
than 1 year after granting of the same, without
a sale being had [Sec. 4, Rule 95]
Investment of proceeds and management
of property
The court may
1. authorize and require guardian to invest
proceeds of sales or encumbrances, and
any other money of his ward in his hands,
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SPECIAL PROCEEDINGS
in real or personal estate, for best interest
of all concerned
2. make such other orders for management,
investment, and disposition of estate and
effects, as circumstances may warrant
[Sec. 5, Rule 95]
Conditions of the bond
a. To make and return to court, within 3
months after issuance of letters of
guardianship, true and complete inventory
of all real and personal estate of his ward
which shall come to his possession or
knowledge, or to possession or knowledge
of any other person from him
b. To faithfully execute duties of his trust, to
manage and dispose of estate according to
the Rules for best interests of ward, and to
provide for his proper care, custody, and
education
c. To render a true and just account of all
property of the ward in his hands, and of all
proceeds or interest derived from them,
and of management and disposition of the
same, at time designated by this rule and
such other times as court directs and at the
expiration of his trust, to settle his accounts
with the court and deliver and pay over all
estate, effects, and moneys remaining in
his hands, or due from him on such
settlement, to person lawfully entitled
thereto
d. To perform all orders of court and such
other duties as may be required by law
[Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05SC]
When new bond may be required and old
sureties discharged
When necessary, the court may require a new
bond to be given by the guardian, and may
discharge the sureties on the old bond from
further liability, after due notice to interested
persons, when no injury can result therefrom to
those interested in the estate
[Sec. 2, Rule 94; Sec. 15, A.M. No. 03-02-05SC]
REMEDIAL LAW
4. Termination of Guardianship
PETITION THAT COMPETENCY OF WARD
BE ADJUDGED
The following persons may petition the court to
have his present competency judicially
determined:
a. person
who
has
been
declared
incompetent for any reason; or
b. his guardian;
c. relative; or
d. friend
The petition shall be verified by oath. The court
shall fix a time for hearing and cause
reasonable notice thereof be given to the
guardian and the ward.
Trial: the guardian or relatives of the ward,
and, in the court’s discretion, any other person,
may contest the right to the relief demanded,
and witnesses may be called and examined by
the parties or by the court on its own motion.
If it be found that the person is no longer
incompetent, his competency shall be
adjudged and the guardianship shall cease.
[Sec. 1, Rule 97]
Removal
When a guardian becomes
a. insane;
b. otherwise incapable of discharging his
trust;
c. unsuitable to discharge the trust;
d. has wasted or mismanaged the estate; or
e. failed for 30 days after it is due to render an
account or make a return
The court may, upon
a. reasonable notice to the guardian, remove
him and
b. compel him to surrender the estate of the
ward to the person found lawfully entitled
thereto and may appoint another in his
place
[Sec. 2, Rule 97]
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Resignation
A guardian may resign when it appears proper
to allow the same; and upon his resignation the
court may appoint another in his place.
[Sec. 2, Rule 97]
Discharge
The guardian of any person may be discharged
by the court when it appears, upon application
of the ward or otherwise, that the guardianship
is no longer necessary.
[Sec. 3, Rule 97]
L.
ADOPTION
1. Distinguish
Domestic
Adoption from Inter-country
Adoption
Domestic adoption – legal process of
adopting a Filipino child by Filipinos and/or
aliens residing in the Philippines for at least 3
consecutive years
Inter-country adoption – the socio-legal
process of adopting a Filipino child by a
foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the
Philippines [Sec. 3(a), R.A. 8043]
Inter-country
Adoption
Board
Central policy-making authority in matters
relating to inter-country adoption [which
domestic adoption does not have]
[Sec. 4, R.A. 8043]
2. Domestic Adoption
Procedure
[A.M. 02-6-02-SC]
A certification that the child is legally
available for adoption must be procured as
a prerequisite for adoption proceedings
[R.A. 8552/R.A. 8043 as amended by R.A.
9523]
REMEDIAL LAW
↓
Verified petition filed with the Family Court
of the province or city where the prospective
adoptive parent(s) reside [Sec. 6]
↓
If adopter is a Filipino, the petition shall
allege:
a. Jurisdictional facts
b. That the petitioner
i.
is of legal age
ii.
in possession of full civil capacity
and legal rights
iii.
of good moral character
iv.
has not been convicted of any crime
involving moral turpitude
v.
emotionally and psychologically
capable of caring for children
vi.
at least 16 years older than the
adoptee (except when adopter is
the biological parent of the adoptee
or is the spouse of the adoptee’s
parent), and
vii.
who is in a position to support and
care for his/her children in keeping
with the means of the family
If adopter is an alien, the petition shall
allege:
a. Jurisdictional facts;
b. sub-paragraph (b) above;
c. That his country has diplomatic relations
with the Republic of the Philippines;
d. That he has been certified by his
diplomatic or consular office or any
appropriate government agency to have
the legal capacity to adopt in his country
and his government allows the adoptee
to enter his country as his adopted child
and reside there permanently as an
adopted child; and
e. That he has been living in the Philippines
for at least 3 continuous years prior to
the filing of the petition and he maintains
such residence until the adoption decree
is entered
The requirements of certification of the
alien’s qualification to adopt in his country
and of residency may be waived if the alien:
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a. is a former Filipino citizen who seeks to
adopt a relative within the 4th degree of
consanguinity or affinity; or
b. seeks to adopt the legitimate child of his
Filipino spouse; or
c. is married to a Filipino citizen and seeks
to adopt jointly with his spouse a relative
within the 4th degree of consanguinity or
affinity of the Filipino spouse
If the adopter is the legal guardian of the
adoptee, the petition shall allege that
guardianship had been terminated and the
guardian had cleared his financial
accountabilities
If the adopter is married, the spouse shall be
a co-petitioner for joint adoption except if:
a. one spouse seeks to adopt the
legitimate child of the other, or
b. one spouse seeks to adopt his own
illegitimate child and the other spouse
signified written consent thereto, or
c. the spouses are legally separated from
each other
[Sec. 7; Sec. 7, Sec. 9, R.A. 8552]
↓
Annexes to the petition:
a. Birth, baptismal or foundling certificate,
as the case may be, and school records
showing the name, age and residence of
the adoptee;
b. Affidavit of consent of persons required
under Sec. 9 of R.A. 8552;
c. Case study report on the adoptee, his
biological parent(s), as well as the
adopter(s);
d. Decree of annulment, nullity or legal
separation of the adopter as well as that
of the biological parents of the adoptee,
if any
[Sec. 11]
↓
Order of hearing [Sec. 12]
↓
Hearing
Petitioner and adoptee must personally
appear and the former must testify before
the presiding judge. The court shall also
verify from the social worker whether the
REMEDIAL LAW
biological parent(s) have been properly
counseled
against
making
hurried
decisions [Sec. 14, Sec. 10, R.A. 8552]
↓
Before issuance of the adoption decree, the
court shall give the adopter a supervised
trial custody of the adoptee for at least
within 6 months. During said period,
temporary parental authority shall be vested
in the adopter. The court may, motu proprio
or upon motion, reduce the period or exempt
the parties if it will be for the best interest of
the adoptee, stating the reasons therefor
(but an alien adopter is required to complete
the 6-month period except if he falls under
the exceptions)
If a child is below 7 and is placed with the
prospective adopter through a pre-adoption
placement authority, the court shall order
that the prospective adopter shall enjoy all
the benefits to which the biological parent is
entitled from the date the adoptee is placed
with him
[Sec. 15; Sec. 12, R.A. 8552]
↓
Decree of adoption to be issued which shall
take effect as of the date the original petition
was filed, even if the petitioner dies before
its issuance
The decree shall:
a. State the name by which the child is to
be known and registered;
b. Order the Clerk of Court to issue to the
adopter a certificate of finality upon
expiration of the 15-day reglementary
period to appeal;
c. Order the adopter to submit a certified
true copy of the decree and the
certificate of finality to the Civil Registrar
where the child was originally registered
within 30 days from receipt of certificate
of finality;
d. Order the Civil Registrar of the place
where adoptee was registered:
i.
To annotate on the original birth
certificate the adoption decree
within 30 days from receipt of
certificate of finality;
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To issue a birth certificate which
shall not bear any notation that it is
new or amended;
iii.
To seal the original birth certificate
in the civil registry records which
can be opened only upon order of
the court which issued the adoption
decree; and d. to submit to the
issuing court proof of compliance
with the foregoing within 30 days
from receipt of decree
[Sec. 16; Secs. 13-14, R.A. 8552]
b. Instances When Adoption May
be Rescinded
ii.
a. Effects of Adoption
1. Parental Authority
Except in cases where the biological parent is
the spouse of the adopter, all legal ties
between the biological parent(s) and the
adoptee shall be severed and the same shall
then be vested on the adopter(s)
[Sec. 16]
2. Legitimacy
The adoptee shall be considered as the
legitimate son/daughter of the adopter(s) for all
intents and purposes [Sec. 17]
3. Succession
In legal and intestate succession, the
adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s)
had left a will, the law on testamentary
succession shall govern. [Sec. 18]
Even if emancipation terminates parental
authority, the adoptee is still considered a
legitimate child of the adopter with all the rights
of a legitimate child such as: (1) to bear the
surname of the father and the mother; (2) to
receive support from their parents; and (3) to
be entitled to the legitime and other
successional rights
[In Re : Petition for Adoption of Lim, G.R. No.
168992-93 (2009)]
REMEDIAL LAW
Upon petition of the adoptee, with the
assistance of the DSWD, as guardian or
counsel, if a minor or if over 18 years of age but
is incapacitated.
Grounds for Rescission
a. Repeated
physical
and
verbal
maltreatment by the adopter(s) despite
having undergone counseling;
b. Attempt on the life of the adoptee;
c. Sexual assault or violence; or
d. Abandonment and failure to comply with
parental obligations
Adoption, being in the best interest of the
child, shall not be subject to rescission by
the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in
Art. 919 of the Civil Code
[Sec. 19]
c. Effects of
Adoption
Rescission
of
Restoration of parental authority or legal
custody if adoptee a minor or is
incapacitated
If the petition is granted, the parental authority
of the adoptee’s biological parent(s), if known,
or the legal custody of the DSWD, shall be
restored if the adoptee is still a minor or
incapacitated.
Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other is
extinguished
Restoration of original birth certificate
The court shall order the Civil Registrar to
cancel the amended certificate or birth of the
adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status
prior to adoption, but only as of the date of
judgment of judicial judicial rescission
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Vested rights acquired prior to rescission shall
be respected.
The foregoing effects of rescission is without
prejudice to the penalties imposable under the
RPC if the criminal acts are properly proven.
[Sec. 20]
3. Inter-country Adoption
Procedure
[A.M. 02-6-02-SC]
An alien or a Filipino citizen permanently
residing abroad shall allege in the petition:
a. That he is at least 27 years old and at
least 16 years older than the child to be
adopted, at the time of application,
unless the adopter is the parent by
nature of the child or the spouse of
such parent;
b. If married, the name of the spouse who
must be joined as co-petitioner except
when the adoptee is the legitimate child
of his spouse;
c. That he has the capacity to act and
assume all rights and responsibilities of
parental authority under his national
laws, and has undergone appropriate
counseling from an accredited
counselor in his country;
d. That he has not been convicted of a
crime involving moral turpitude;
e. That he is eligible to adopt under his
national law;
f. That he is in a position to provide
proper care and support;
g. That he agrees to uphold the basic
rights of the child under Philippine laws,
and UNCRC, and to abide by the rules
and regulations under R.A. 8043;
h. That he comes from a country with
whom the Philippines has diplomatic
relations and whose government
maintains a similarly authorized and
accredited agency and that adopted is
allowed under his national laws; and
i. That he possesses all the qualifications
and none of the disqualifications
provided in R.A. 8043 and in other
applicable Philippine laws
REMEDIAL LAW
[Sec. 30; Sec. 9, R.A. 8043]
↓
Annexes to the petition written and
translated in the English language:
a. Birth certificate of petitioner;
b. Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c. Sworn statement of consent of
petitioner’s biological or adopted
children above 10 years old;
d. Physical, medical and psychological
evaluation of the petitioner certified by
a duly licensed physician and
psychologist;
e. ITRs or any authentic document
showing the current financial capability
of the petitioner;
f. Police clearance of petitioner issued
within 6 months before the filing of the
petition;
g. Character reference from the local
church/minister, the petitioner’s
employer and a member of the
immediate community who have known
the petitioner for at least 5 years;
h. Full body postcard-size pictures of
petitioner and his immediate family
taken at least 6 months before filing the
petition
[Sec. 31; Sec. 10, R.A. 8043]
↓
The court, after finding that the petition is
sufficient in form and substance and a
proper case for inter-country adoption, shall
immediately transmit the petition to the InterCountry Adoption Board for appropriate
action
[Sec. 32]
The Inter-Country Adoption Board shall
issue a clearance that the child cannot be
adopted locally, and when the Board is
ready to transmit the child to the authorized
and accredited inter-country adoption
agency, the adoptive parent(s) shall
personally fetch the child in the Philippines.
A supervised trial custody shall be done for
a period of 6 months from the time of
placement of the child to the adoptive
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parents, to be facilitated by the inter-country
adoption agency where the adoptive
parents filed their application. Only after the
lapse of 6 months will an adoption decree
issue in the said country and a copy of which
shall be sent to the Board
[Sec. 11, R.A. 8043]
a. When Allowed
Only to be used as a last resort and in the best
interest of the child when the Inter-country
Adoption Board has exhausted all possibilities
for adoption under the Family Code.
[Sec. 7, R.A. 8043]
Family matching
No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the
child cannot be adopted locally.
[Sec. 11, R.A. 8043]
Only a child legally available for domestic
adoption may be the subject of inter-country
adoption.
[Sec. 29; Sec. 8, R.A. 8043]
b. Functions of the Regional Trial
Court
1. Receive the application
2. Assess the qualification of the prospective
adopter
3. Refer its findings, if favorable, to the InterCountry Adoption Board
[De Leon 340, 2015]
c. ‘Best Interest of the Child’
Standard
Inter-country adoption is allowed only when the
same shall prove beneficial to the child’s
interest and shall serve and protect his/her
fundamental rights. [De Leon 340, 2015]
M.
REMEDIAL LAW
WRIT OF HABEAS
CORPUS
Coverage
Extends to all cases of illegal confinement or
detention by which any person is deprived of
his liberty, or by which the rightful custody of
any person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Note: The privilege of the writ of habeas corpus
can only be suspended in cases of rebellion or
invasion and when public interest requires it.
[Sec. 15, Art. III, Constitution]
Rationale
The underlying rationale is not the illegality of
the restraint but the right of custody [Tijing v.
CA, G.R. No. 125901 (2001)]
Purpose
The purpose of the writ is to inquire into all
manner of involuntary restraint, and to relieve
a person therefrom if such restraint is illegal
1. To obtain immediate relief from illegal
confinement
2. To liberate those who may be imprisoned
without sufficient cause
3. To deliver them from unlawful custody
[Velasco v. CA, G.R. No. 118644 (1995)]
Concept of restraint
Actual and effective and not merely nominal or
moral restraint is required. [Zagala v. Illustre,
G.R. No. L-23999 (1926)]
Restrictive custody is, at best, nominal restraint
which is beyond the ambit of habeas corpus. It
is neither actual nor effective restraint that
would call for the grant of the remedy prayed
for. It is a permissible precautionary measure
to assure the PNP authorities that the police
officers concerned are always accounted for
[Ampatuan v Judge Macaraig, G.R. No.
182497 (2010)]
However, actual physical restraint is not always
required; any restraint which will prejudice
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freedom of action is sufficient [Moncupa v.
Enrile, G.R. No. L-63345 (1986)]
Strict
compliance
with
the
technical
requirements for a habeas corpus petition as
provided in the Rules of Court may be
dispensed with where the allegations in the
application are sufficient to make out a case for
habeas corpus. Indeed, in the landmark case
of Villavicencio v. Lukban, 39 Phil. 778, the
Supreme Court declared that it is the duty of a
court to issue the writ if there is evidence that a
person is unjustly restrained of his liberty within
its jurisdiction even if there is no application
therefor. A petition which is deficient in form,
such as a petition-letter, may be entertained so
long as its allegations sufficiently make out a
case for habeas corpus. [Fletcher v. Director of
BuCor, UDK- 14071, (2009)].
Who may issue the writ
1. The SC, CA, and RTC have concurrent
jurisdiction to issue WHC [Sec. 2, Rule 102]
2. Family courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the writ in relation to custody of
minors [Sec. 20, AM 03-04-04-SC, Re
Proposed Rule on Custody of Minors and
Writ of Habeas corpus in Relation to
Custody of Minors]
Writs issued by the Supreme Court, the Court
of Appeals, and the Sandiganbayan are
enforceable anywhere in the Philippines.
Those issued by the RTC and MTC are
enforceable only within the judicial region to
which they belong.
Even though the writ of habeas corpus was
issued by the CA but it designated the RTC as
the court to which the writ is made returnable,
the decision of the RTC is its own and not that
of the CA. [In re Datukan Malang Salibo,
(2015)].
Temporary release may constitute restraint
1. Where a person continued to be unlawfully
denied one or more of his constitutional
rights
2. Where there is present denial of due
process
REMEDIAL LAW
3. Where the restraint is not merely
involuntary but appear to be unnecessary
4. Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa
v. Enrile, G.R. No. L-63345 (1986)]
When detained person released
General rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot
Exception: Doctrine of Constructive
Restraint – Restraints attached to release
which precludes freedom of action, in which
case the court can still inquire into the nature of
the involuntary restraint
Nature
Not a suit between private parties, but an
inquisition by the government, at the
suggestion and instance of an individual, but
still in the name and capacity of the sovereign.
There can be no judgment entered against
anybody since there is no real plaintiff and
defendant [Alimpos v. CA, G.R. Nos. L-5040506 (1981)]
Proceedings in habeas corpus are separate
and distinct from the main case from which the
proceedings spring. [Ching v. Insular Collector
of Customs, G.R. No. 10972 (1916)]
The question whether one shall be imprisoned
is always distinct from the question of whether
the individual shall be convicted or acquitted of
the charge on which he is tried, and therefore
these questions are separate, and may be
decided in different courts [Herrera, citing 4
Cranch, 75, 101]
The writ of habeas corpus is not designed to
interrupt the orderly administration of the laws
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose of relieving from illegal restraint
[People v. Valte, G.R. No. L-18760 (1922)]
Proceedings on habeas corpus to obtain
release from custody under final judgment
being in the nature of collateral attack, the writ
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SPECIAL PROCEEDINGS
deals only with such radical defects as to
render the proceeding or judgment absolutely
void, and cannot have the effect of appeal, writ
of error or certiorari, for the purpose of
reviewing mere error and irregularities in the
proceedings [People v. Valte, G.R. No. L18760 (1922)]
Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the judge
in order that the cause of his detention may be
inquired into [Caballes v. CA, G.R. No. 163108
(2005)]
WHC may be used with writ of certiorari for
purposes of review
The two writs may be ancillary to each other
where necessary to give effect to the
supervisory powers of higher courts [Galvez v.
CA, G.R. No. 114046 (1994)]
WHC reaches the body and the jurisdictional
matters, but not the record. Writ of certiorari
reaches the record, but not the body [Galvez v.
CA, G.R. No. 114046 (1994)]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases [Herrera, citing
39 C.J.S. Habeas corpus §13, 486-488]
Overview of Procedure
Application for the writ by petition [Sec. 3,
Rule 102]
↓
Grant or disallowance of writ and issuance
by court or judge [Secs. 4-5, Rule 102]
↓
Clerk of court issues the writ under the seal
of court (in case of emergency, by the judge
himself) [Sec. 5, Rule 102]
Note: ROC (Secs. 5 and 12) does not fix the
periods but uses “forthwith”. The special
rules for WHC relating to minors designates
periods. However, in practice and in
jurisprudence, the writ must be issued within
24 hours.
↓
Service
a. By whom: sheriff or other proper
officer BUT in case of emergency
where the judge himself issues the
writ, the judge may depute any
person to serve the writ [Sec. 5,
Rule 102]
b. How: leaving the original with the
person to whom it is directed and
preserving a copy on which to make
return
c. To whom: officer in custody or any
officer (when in custody of person
other than an officer) [Sec. 7, Rule
102]
↓
Writ executed and returned [Sec. 8, Rule
102]
↓
Hearing by the court (upon return) [Sec. 12,
Rule 102]
↓
Execution of the writ
a. Officer brings the person before the
judge, and
b. Officer makes the due return [Sec.
8, Rule 102]
1. Contents of the Petition
Signed and verified petition must set forth:
a. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty
b. The officer or name of the person by whom
he is so imprisoned or restrained; or, if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended
c. The place where he is so imprisoned or
restrained, if known
d. Copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency of
the remedy
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If imprisonment or restraint is without any legal
authority, such fact shall appear [Sec. 3, Rule
102]
Who may apply
a. The party for whose relief it is intended, or
b. By some person on his behalf [Sec. 3, Rule
102]
Some person – any person who has a legally
justified interest in the freedom of the person
whose liberty is restrained or who shows some
authorization to make the application [Velasco
v. CA, G.R. No. 118644 (1995)]
2. Contents of the Return
Form
a. Written and signed by the person who
makes it
b. Sworn by the person who makes it if
1. The prisoner is not produced, and
2. In all other cases, unless the return is
made and signed by a sworn public
officer in his official capacity [Sec. 11,
Rule 102]
By whom made: The person or officer who has
the person under restraint, or in whose custody
the prisoner is found [Sec. 10, Rule 102]
Contents
a. Whether he has or has not the party in his
custody or power, or under restraint
b. If he has the party in his custody or power,
or under restraint, the authority and the true
and whole cause thereof, set forth at large,
with a copy of the writ, order execution, or
other process, if any, upon which the party
is held
c. If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by
reason of which he cannot, without danger,
be bought before the court or judge
d. If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what time,
REMEDIAL LAW
for what cause, and by what authority such
transfer was made
When the return considered evidence, and
when only a plea
Custody under
warrant of
Restraint is by
commitment in
private authority
pursuance of law
The return shall be
considered only as a
The return shall be
plea of the facts
considered
prima
therein set forth,
facie evidence of
and
the
party
the
cause
of
claiming the custody
restraint
must prove such
facts
[Sec. 13, Rule 102]
3. Peremptory
Writ
Preliminary Citation
and
Distinction between the writ and the
privilege of the writ
The writ of habeas corpus is a process that is
tantamount to a summons to appear before the
court issuing it for an inquiry into the cause of
the restraint complained of. Its issuance does
not amount to an adjudication of the issue of
legality of the restraint. It is just an order to
appear and explain.
The privilege of the writ, on the other hand, is
the writ issued to enforce the court’s decision
on the merits finding the restraint illegal and
directing the release from custody of the
detained individual.
Preliminary citation
Requires
the
respondent to appear
and show cause why
the peremptory writ
should not be granted
Page 317 of 525
Peremptory writ
A written document
which unconditionally
commands
the
respondent to have
the body of the
detained
person
before the court at a
time
and
place
therein specified
U.P. LAW BOC
SPECIAL PROCEEDINGS
[Lee Yick Hon v. Collector of Customs, G.R.
No. L-16779 (1921)]
The order to present an individual before the
court is a preliminary step in the hearing of the
petition. This order is NOT a ruling on the
propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the
order to produce the body is not equivalent to
a grant of the writ of habeas corpus. [In the
Matter of the Petition for Habeas corpus of
Alejano v. Cabuay, G.R. No. 160792 (2005)]
Quantum of proof for the issuance or nonissuance of the privilege
When respondents' defense to a petition for
habeas corpus is that they released the
detainees for whom the petition was filed, but
the allegation of release is disputed by
petitioners, and it is not denied that the
detainees have not been seen or heard from
since
their
supposed
release,
the
respondents have the burden in law of
proving by clear and convincing evidence
that they released the detainees. [Dizon v.
Eduardo, G.R. No. L-59118 (1988)]
4. When
Not
Applicable
Proper
or
When WHC is NOT proper
a. For asserting or vindicating the denial of
right to bail [Enrile v. Salazar, G.R. No.
92163 (1990)]
b. Where the petitioner has the remedy of
appeal or certiorari [Galvez v. CA, G.R. No.
114046 (1994)]
c. For correcting errors in the appreciation of
facts or law [Sotto v. Director of Prisons,
G.R. No. L-18871 (1962)
Exception: If error affects court’s
jurisdiction making the judgment void
[Herrera]
d. For enforcing marital rights including
venture and living in conjugal dwelling
[Ilusorio v. Bildner, G.R. No. 139789
(2001)]
e. When restrained under a lawful process or
order of the court, petitioner’s remedy is to
file a motion to quash the information or the
f.
REMEDIAL LAW
warrant of arrest [In the matter of the
petition for habeas corpus of Datukan
Malang Salibo v. Warden, G.R. No. 197597
(2015)]
When detention was by virtue of a final
judgment, the writ of habeas corpus may
not issue [Adonis v. Tesoro, G.R. No.
182855 (2013)]
When WHC is proper
a. Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v.
Galang, G.R. No. L-18365 (1963)]
b. Where the court has no jurisdiction to
impose the sentence [Banayo v. President
of San Pablo, G.R. No. 1430 (1903)]
c. Where a person is deprived of liberty due
to mistaken identity. In such cases, the
person is not under any lawful process and
is continuously being illegally detained. [In
re Datukan Malang Salibo, (2015)].
5. When Writ
Discharged
Disallowed
or
a. When restraint is by lawful order or process
[Mangila v. Judge Pangilinan, G.R. No.
160739 (2013); Adonis v. Tesoro, G.R. No.
182855 (2013); Ampatuan v. Judge
Macaraig, G.R. No. 182497 (2010)]
b. The person alleged to be restrained of his
liberty is in the custody of an officer
1. Under process issued by the court or
judge or by virtue of a judgment or
order of a court of record, and
2. Said court had jurisdiction to issue the
process, render the judgment or make
the order, or
c. Jurisdiction appears after the writ is
allowed despite any informality or defect in
the process, judgment, or order [Sec. 4,
Rule 102]
d. If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with
an offense punishable by death [Sec. 14,
Rule 102]
e. Where the person in whose behalf the writ
is sought is out on bail [Mangila v.
Pangilinan, G.R. No. 160739 (2013)]
Page 318 of 525
U.P. LAW BOC
f.
REMEDIAL LAW
SPECIAL PROCEEDINGS
Even if the arrest of a person is illegal, the
following supervening events may bar
release
1. Issuance of a judicial process [Sayo v.
Chief of Police of Manila, G.R. No. L2128 (1948)]
Judicial process is defined as a writ,
warrant, subpoena, or other formal
writing issued by authority of law
[Malaloan v. CA, G.R. No. 104879
(1994)]
2. The filing of a complaint before a trial
court which issued a hold departure
order and denied motion to dismiss and
to grant bail [Velasco v. CA, G.R. No.
118644(1995)]
3. Filing of an information for the offense
for which the accused is detained bars
the availability of WHC [Velasco v. CA,
G.R. No. 118644 (1995)]
The writ of habeas corpus cannot be availed of
in cases of detention by virtue of a judicial
process or valid judgment. Exceptions where
the writ may be availed of as a postconviction remedy:
a. There has been a deprivation of a
constitutional right resulting in the restraint
of a person;
b. The court had no jurisdiction to impose the
sentence; or
c. An excessive penalty has been imposed,
as such sentence is void as to such excess.
[Harden v. Director of Prisons, 81 Phil. 741;
Go v. Dimagiba, G.R. No. 151876, (2005)].
What is to be inquired into is the legality of a
person’s detention as of, at the earliest, the
filing of the application for the writ of habeas
corpus, for even if the detention is at in its
inception illegal, it may no longer be illegal at
the time of the filing of the application, by
reason of supervening events [Ampatuan v.
Macaraig, G.R. 182497 (2010)]
6. Distinguished From Writ of
Amparo and Habeas Data
Writ of
habeas
corpus
Extends to
all cases of
illegal
confineme
nt
or
detention
(deprivatio
n of liberty),
or
where
rightful
custody is
withheld
from
person
entitled
thereto
Writ of
amparo
Writ of habeas
data
ONLY covers
extralegal
killings and
enforced
disappearanc
es or threats
thereof
Designed
to
protect
the
image, privacy,
honor,
information,
and freedom of
information of
an individual,
and to provide
a forum to
enforce one’s
right to the truth
and
to
informational
privacy but in
relation to a
threat to one’s
right to privacy
in regard to life,
security, and
liberty [Vivares
v. St. Theresa’s
College, G.R.
No.
202666
(2014)]
See Comparative Table at the end of Writ of
Habeas Data for a more comprehensive list of
distinctions.
7. Writ of Habeas Corpus In
Relation To Custody of
Minors [A.M. No. 03-04-04-SC]
Applicability
Rule applies to petitions for custody of minors
and writs of habeas corpus in relation thereto.
The Rules of Court applies suppletorily [Sec. 1]
In custody cases involving minors, the writ of
habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.
Page 319 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
The grant of the writ depends on the
concurrence of the following requisites: (1) that
the petitioner has the right of custody over the
minor; (2) that the rightful custody over the
minor is being withheld from the petitioner by
the respondents; and (3) that it is to the best
interest of the minor concerned to be in the
custody of petitioner and not that of the
respondents
[Masbata v. Relucio, G.R. No. 235498 (2018)
Who may file
Any person claiming rightful custody of a minor
[Sec. 2]
Where filed; where enforceable
A verified petition shall be filed with the Family
Court of the province or city where the
petitioner resides or where the minor may be
found, or with the CA or the SC.
If filed with the Family Court where the
petitioner resides, or where the minor may be
found, the writ is enforceable within the judicial
region where the Family Court belongs.
If filed with the CA or the SC, or with any of its
members, the writ shall be enforceable
anywhere in the Philippines. Upon issuance of
the writ by the SC or CA, it may be made
returnable to a Family Court or to any regular
court within the region where the petitioner
resides or where the minor may be found.
If the presiding judge of the Family Court is
absent, then the petition may be filed with a
regular court, provided that the regular court
shall refer the case to the Family Court as soon
as the presiding judge returns to duty.
If there are no Family Courts in the area, then
the petition may be filed with the regular courts
The writ is returnable to the Family Court, or to
any regular court within the judicial region
where the petitioner resides or where the minor
may be found, for hearing and decision on the
merits.
Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
REMEDIAL LAW
Considering that the writ is made enforceable
within a judicial region, petitions for the
issuance of the writ of habeas corpus, whether
they be filed under Rule 102 or pursuant to
Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed with any of the proper RTCs
within the judicial region where enforcement
thereof is sought [Tujan-Militante v. CadaDeapera, G.R. No. 210636 (2014)]
Procedure
A verified petition is filed alleging:
a. The personal circumstances of the
petitioner and of the respondent;
b. The
name,
age
and
present
whereabouts of the minor and his or her
relationship to the petitioner and the
respondent;
c. The material operative facts constituting
deprivation of custody; and
d. Such other matters which are relevant to
the custody of the minor
The verified petition shall be accompanied
by a certificate against forum shopping,
which the petitioner must sign personally
[Sec. 4]
↓
If sufficient in form and substance, court
shall direct the clerk of court to issue
summons, which shall be issued together
with a copy of the petition personally on
respondent [Sec. 5]
↓
Within 5 days the respondent shall file a
verified answer [Sec. 7]
Note: A motion to dismiss is not allowed
except on the ground of lack of jurisdiction
over the subject matter or over the parties.
Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer [Sec. 6]
↓
Upon filing of answer or expiration of period
to file it, court may order a social worker to
make a case study of the minor and the
parties and to submit a report and
recommendation at least 3 days before the
scheduled pre-trial [Sec. 8]
Page 320 of 525
U.P. LAW BOC
REMEDIAL LAW
SPECIAL PROCEEDINGS
The court may also issue a provisional order
awarding custody of the minor. As far as
practicable, the following order of
preference shall be observed:
a. Both parents jointly;
b. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment,
unless the parent chosen is unfit;
c. The grandparent, or if there are several
grandparents, the grandparent chosen
by the minor over seven years of age
and of sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
d. The eldest brother or sister over twentyone years of age, unless he or she is
unfit or disqualified;
e. The actual custodian of the minor over
twenty-one years of age, unless the
former is unfit or disqualified; or
f. Any other person or institution the court
may deem suitable to provide proper
care and guidance for the minor
[Sec. 13]
The court shall provide in its order awarding
provisional custody appropriate visitation
rights to the non-custodial parent/s, unless
the court finds said parent/s unfit or
disqualified [Sec. 15]
↓
Within 15 days after filing of answer or
expiration of period to file it, the court shall
issue an order
1. Fixing a date for the pre-trial conference;
2. Directing the parties to file and serve
their respective pre-trial briefs in such
manner as shall ensure receipt thereof
by the adverse party at least 3 days
before the date of pre-trial; and
3. Requiring the respondent to present the
minor before the court
Notice of order shall be served separately to
the parties and their counsels. Pre-trial is
mandatory [Sec. 9]
↓
Filing of pre-trial brief which shall contain the
following:
a. A statement of the willingness of the
parties to enter into agreements that
may be allowed by law, indicating its
terms;
b. A concise statement of their respective
claims together with the applicable laws
and authorities;
c. Admitted
facts
and
proposed
stipulations of facts;
d. The disputed factual and legal issues;
e. All the evidence to be presented, briefly
stating or describing its nature and
purpose;
f. The number and names of the witnesses
and their respective affidavits which
shall serve as the affiant's testimony on
direct examination; and
g. Such other matters as the court may
require to be included in the pre-trial
brief
Failure to file it or to comply with its required
contents shall have the same effect as
failure to appear at the pre-trial [Sec. 10]
↓
Pre-trial where the parties may agree on the
custody of the minor. If parties disagree,
court may refer to a mediator who has 5
days to effect an agreement between the
parties. If still not settled, court to proceed
with pre-trial conference
Failure to appear at pre-trial
a. If petitioner fails to appear personally,
the case shall be dismissed, unless his
counsel
or
a
duly
authorized
representative appears in court and
proves a valid excuse for the nonappearance
b. If respondent has filed his answer but
fails to appear at the pre-trial, the
petitioner shall be allowed to present his
evidence ex parte. The court shall then
render judgment on the basis of the
pleadings and the evidence thus
presented
[Secs. 11-12]
↓
Page 321 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
Court renders judgment awarding custody
of the minor to the proper party considering
the best interests of the minor
If it appears both parties are unfit, court may
designate
a. either paternal/maternal grandparent of
the minor;
b. his older brother or sister; or
c. any reputable person
to take charge of such minor or commit him
to any suitable home for children
Court may order either or both parents to
give an amount necessary for the support,
maintenance and education of the minor,
irrespective of who may be its custodian
Court may also issue any order that is just
and reasonable permitting the parent who is
deprived of custody to visit or have
temporary custody [Sec. 18]
↓
No appeal from the decisions shall be
allowed unless the appellant has filed a
motion for reconsideration or new trial within
15 days from notice of judgment
Any aggrieved party may appeal by filing a
Notice of Appeal within 15 days from notice
of the denial of the motion for
reconsideration or new trial and serving a
copy thereof on the adverse parties [Sec.
19]
Hold Departure Order
The minor child shall not be brought out of the
country without prior order from the court while
the petition is pending
The court, motu proprio or upon application
under oath, may issue ex parte a hold
departure order, addressed to the Bureau of
Immigration and Deportation (BID), directing it
not to allow the departure of the minor from the
Philippines. A copy shall be furnished to the
Department of Foreign Affairs, BID, and
Department of Justice within 24 hours from its
issuance.
REMEDIAL LAW
Contents of the hold departure order
a. The complete name (including the middle
name), the date and place of birth, the
nationality and the place of last residence of the
person against whom a hold departure order
has been issued or whose departure from the
country has been enjoined;
b. The complete title and docket number of the
case in which the hold departure order was
issued;
c. The specific nature of the case;
d. The date of the hold departure order; and
e. A recent photograph, if available, of the party
against whom a hold departure order has been
issued or whose departure from the country
has been enjoined
Recall
The court may recall the hold departure order
motu proprio, or upon verified motion of any of
the parties after summary hearing, subject to
such terms and conditions as may be
necessary for the best interests of the minor.
[Sec. 16]
Protection Order
The court may issue such order requiring any
person
a. To stay away from the home, school,
business, or place of employment of the minor,
other parent or any other party, or from any
other specific place designated by the court;
b. To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody of
the minor is awarded;
c. To refrain from acts of commission or
omission that create an unreasonable risk to
the health, safety, or welfare of the minor;
d. To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated periods;
e. To permit a designated party to enter the
residence during a specified period of time in
order to take personal belongings not
contested in a proceeding pending with the
Family Court; and
f. To comply with such other orders as are
necessary for the protection of the minor
Page 322 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
Habeas corpus may be resorted to in cases
where rightful custody is withheld from a
person entitled thereto. Under Art. 211 of the
Family Code, husband and wife have joint
parental authority over their son and
consequently, joint custody. And although the
couple is separated de facto, the issue of
custody has yet to be adjudicated by the court.
In the absence of judicial grant of custody to
one parent, both parents are still entitled to the
custody of their child. Thus, where the
husband’s cause of action is the deprivation of
his right to see his child, the remedy of habeas
corpus is available to him [Salientes v.
Abanilla, G.R. No. 162734 (2006)]
N.
WRIT OF AMPARO
[A.M. No. 07-9-12-SC]
REMEDIAL LAW
action [Secretary of National Defense v.
Manalo, G.R. No. 180906 (2008)]
Elements of enforced disappearance, as
statutorily defined in R.A. 9851
a. That there be an arrest, detention,
abduction or any form of deprivation of
liberty
b. That it be carried out by, or with the
authorization, support or acquiescence of,
the State or a political organization
c. That it be followed by the State or political
organization’s refusal to acknowledge or
give information on the fate or whereabouts
of the person subject of the amparo
petition, and
d. That the intention for such refusal is to
remove subject person from the protection
of the law for a prolonged period of time
[Caram v. Segui, G.R. No. 193652 (2014)]
The writ applies only to the right to life, liberty
and security of persons and not property.
[Pador v. Arcayan citing Tapuz v. Del Rosario,
G.R. No. 183460 (2013)]
1. Coverage
Amparo literally means “to protect”
It is a remedy available to any person whose
right to life, liberty, and security has been
violated or is threatened with violation by a
public official or employee or a private
individual or a private individual or entity. The
writ covers extralegal killings and enforced
disappearances or threats thereof. [Sec. 1]
The remedy of the writ of amparo is an
equitable and extraordinary remedy to
safeguard the right of the people to life, liberty
and security, as enshrined in the 1987
Constitution [De Lima v. Gatdula, G.R. 204528
(2013)]
The remedy of the writ of amparo serves both
preventive and curative roles in addressing the
problem of extralegal killings and enforced
disappearances
1. Preventive – it breaks the expectation of
impunity in the commission of offenses
2. Curative – it facilitates the subsequent
punishment of perpetrators by inevitably
leading to subsequent investigation and
“Right to security” as a guarantee of protection
by the government, is violated by the apparent
threat to the life, liberty and security of their
person.
Right to security includes
a. Freedom from fear
b. Guarantee of bodily and psychological
integrity or security
c. Guarantee of protection of one’s rights by
the government
Protection includes conducting effective
investigations, organization of the government
apparatus to extend protection to victims of
extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and
bringing offenders to the bar of justice
[Secretary of National Defense v. Manalo, G.R.
No. 180906 (2008)]
There is a violation of freedom from threat
by the apparent threat to life, liberty and
security of their person from the following facts
Page 323 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
a. Threat of killing their families if they tried to
escape
b. Failure of the military to protect them from
abduction
c. Failure of the military to conduct effective
investigation
[Secretary of National Defense v. Manalo, G.R.
No. 180906 (2008)]
The writ of amparo does not protect the right to
travel. Where the petitioner failed to establish
that his right to travel was impaired in the
manner and to the extent that it amounted to a
serious violation of his right to life, liberty and
security, the writ of amparo will not lie. [Reyes
v. Gonzales, G.R. No. 182161 (2009)]
Nature
The writ of amparo is an extraordinary and
independent remedy that provides rapid
judicial relief, as it partakes of a summary
proceeding that requires only substantial
evidence to make the appropriate interim and
permanent reliefs available to the petitioner. It
is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance
of evidence, or administrative responsibility
requiring substantial evidence that will require
full and exhaustive proceedings. [Rodriguez v.
Macapagal-Arroyo, G.R. No. 191805 (2011)]
The writ cannot be availed of by an alien
detained by the Bureau of Immigration by virtue
of legal process [Mison v. Gallegos, G.R. No.
210759 (2015)]
To fall within the ambit of A.M. No. 07-9-12-SC
in relation to RA No. 9851, the disappearance
must be attended by some governmental
involvement.
This
hallmark
of
State
participation differentiates an enforced
disappearance case from an ordinary case of a
missing person. [Navia v Pardico, G.R. No.
184467 (2012)]
Court may motu proprio dismiss a petition for
writ of amparo, regardless of the filing of a
motion to dismiss, if it is clear that the case falls
outside the purview of the Rules on the Writ of
REMEDIAL LAW
Amparo. [Santiago v. Tulfo, G.R. No. 205039
(2015)]
2. Differences Between Amparo
and Search Warrant
The production order under the Amparo Rule
should not be confused with a search warrant
for law enforcement under Article III, Section 2
of the 1987 Constitution.
The Constitutional provision is a protection of
the people from the unreasonable intrusion of
the government, not a protection of the
government from the demand of the people
such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or
things under Section 1, Rule 27 of the Rules of
Civil Procedure i.e. “Upon motion of any party
showing good cause therefor, the court in
which an action is pending may (a) order any
party to produce and permit the inspection and
copying or photographing, by or on behalf of
the moving party, of any designated
documents, papers, books of accounts, letters,
photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action
and which are in his possession, custody or
control” [Secretary of National Defense v.
Manalo, G.R. No. 180906 (2008)]
3. Who May File
a. Aggrieved party, or
b. Qualified person or entity in the following
order
1. Any member of the immediate family
namely the spouse, children and
parents of the aggrieved party
2. Any
ascendant, descendant or
collateral relative of the aggrieved party
within the fourth civil degree of
consanguinity or affinity, in default of
those mentioned in the preceding
paragraph, or
3. Any concerned citizen, organization,
association or institution if there is no
Page 324 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
known member of the immediate family
or relative of the aggrieved party
The filing of a petition by the aggrieved party
suspends the right of all other authorized
parties to file similar petitions. Likewise, the
filing of the petition by an authorized party on
behalf of the aggrieved party suspends the
right of all others, observing the order
established herein [Sec. 2]
Ratio for preference for filing party
a. Necessary
for
the
prevention
of
indiscriminate and groundless filing of
petitions for amparo which may even
prejudice the right to life, liberty or security
of the aggrieved party [Boac v. Cadapan,
G.R. Nos. 184461-62 (2011)]
b. Untimely resort to the writ by a nonmember of the family may endanger the life
of the aggrieved party [Phil. Judicial
Academy Journal, June-Dec 2008 Vol. 10
Issue 30, p. 243]
Where to file
a. RTC where the threat, act or omission was
committed or any of its element occurred,
or
b. Sandiganbayan - unlike the writ of habeas
corpus, because public officials and
employees will be respondents in amparo
petitions, or
c. Court of Appeals, or
d. Supreme Court, or
e. Any justice of such courts [Sec. 3]
May be filed on any day, including Saturdays,
Sundays, and holidays, from morning until
evening
The writ shall be enforceable anywhere in
Philippines [Sec. 3]
No docket fees
Petitioner shall be exempted from payment of
docket fees and other lawful fees when filing
the petition [Sec. 4]
Contents of the petition
A signed and verified petition shall contain:
REMEDIAL LAW
a. The personal circumstances of the
petitioner
b. The name and personal circumstances of
the respondent responsible for the threat,
actor omission
If the name is unknown or uncertain, may
be described by an assumed appellation
c. The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent
1. How such threat or violation is
committed
2. With the attendant circumstances
detailed in supporting affidavits
d. The investigation conducted, if any,
specifying
1. Names, the personal circumstances
and addresses of the investigating
authority or individuals
2. Manner
and
conduct
of
the
investigation
3. Together with any report
e. The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and
the identity of the person responsible for
the threat, act or omission, and
f. The relief prayed for
It may include a general prayer for other just
and equitable reliefs [Sec. 5]
Issuance of writ
Upon filing of petition, writ shall immediately
issue if on its face it ought to issue
Who shall issue
The clerk of court shall issue the writ; however
in case of urgent necessity, the justice or the
judge may issue the writ under his or her own
hand, and may deputize any officer or person
to serve it
Date and time for summary hearing of the
petition shall be set not later than 7 days from
date of issuance
[Sec. 6]
President may not be impleaded as respondent
because of presidential immunity from suit.
Page 325 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
[Rubrico v. Macapagal-Arroyo, (2010)]; Burgos
v. Macapagal-Arroyo, (2010)]
May the AFP Chief of Staff and the PNP
director be included as respondents in a writ of
amparo case solely on the basis of command
responsibility? Yes, but not for the purpose of
attaching accountability and responsibility to
them for the enforced disappearance of
Lourdes but only to determine the author who,
at the first instance, is accountable for and has
the duty to address the disappearance and
harassments complaint of in order to enable
the court to devise remedial measures.
(Rubrico v. Macapagal-Arroyo, G.R. No.
183871, (2010)]
REMEDIAL LAW
3. to identify witnesses and obtain
statements from them concerning the
death or disappearance
4. to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance
5. to identify and apprehend the person or
persons involved in the death or
disappearance, and
6. to bring the suspected offenders before
a competent court., and
e. The return shall also state matters relevant
to the investigation, its resolution and the
prosecution of the case
No general denial of the allegations allowed
[Sec. 9]
4. Contents of Return
When to file return
Respondent must file a verified written return
within 5 days after service of writ, together with
supporting affidavits [Sec. 9]
Contents of the return
a. The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission
b. The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and
the person responsible for the threat, act or
omission
c. All relevant information in the possession
of the respondent pertaining to the threat,
act or omission against the aggrieved
party, and
d. If the respondent is a public official or
employee, the return shall further state the
actions that have been or will still be taken
1. to verify the identity of the aggrieved
party
2. to recover and preserve evidence
related to the death or disappearance
of the person identified in the petition
which may aid in the prosecution of the
person or persons responsible
Prohibited pleadings and motions
a. Motion to dismiss
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings
c. Dilatory motion for postponement
d. Motion for a bill of particulars
e. Counterclaim or cross-claim
f. Third-party complaint
g. Reply
h. Motion to declare respondent in default
i. Intervention
j. Memorandum
k. Motion for reconsideration of interlocutory
orders or interim relief orders, and
Petition for certiorari, mandamus or
prohibition against any interlocutory order
[Sec. 11]
Prohibited
pleadings;
suppletory
application of the Rules of Court
The pleadings and motions enumerated in Sec.
11 of A.M. No. 07-9-12-SC would
unnecessarily
cause
delays
in
the
proceedings; they are, thus, proscribed since
they would run counter to the summary nature
of the rule on the writ of amparo. A motion
seeking reconsideration of a final judgment or
order in such case, obviously, no longer affects
the proceedings.
Page 326 of 525
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SPECIAL PROCEEDINGS
Moreover, the ROC applies suppletorily to A.M.
No. 07-9-12-SC insofar as it is not inconsistent
with the latter. Accordingly, there being no
express prohibition to the contrary, the rules on
motions for reconsideration under the ROC
apply suppletorily to the Rule on the Writ of
Amparo. [Mamba, et al. v. Buena, G.R. No.
191416 (2017)]
The RTC judge acted with grave abuse of
discretion in ordering the respondents De Lima
et al., to file an answer rather than a return. A
return is different and serves a different
function from an answer. [De Lima v. Gatdula,
G.R. No. 204528 (2013)]
To whom returnable
a. If filed with RTC, returnable to RTC or any
judge
b. If filed with Sandiganbayan, CA or any
justice, returnable to such court or any
justice or the RTC where the threat, act or
omission was committed or any of its
elements occurred
c. If filed with the SC, returnable to the SC or
any justice, or to the CA, SB or any of its
justices, or the RTC where the threat, act
or omission was committed or any of its
elements occurred [Sec. 3]
5. Effects of Failure to File
Return
In case the respondent fails to file a return, the
court, justice, or judge shall proceed to hear the
petition ex parte [Sec. 12]
6. Omnibus Waiver Rule
All defenses shall be raised in the return,
otherwise, they shall be deemed waived [Sec.
10]
REMEDIAL LAW
and determine the possibility of obtaining
stipulations and admissions from the parties
Hearing shall be from day to day until
completed and given the same priority as
petitions for habeas corpus [Sec. 13]
Judgment
The court shall render judgment within 10 days
from the time of petition is submitted for
decision [Sec. 18]
Appeal
Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45,
5 working days from the date of notice of the
adverse judgment [Sec. 19]
Archiving and revival of cases
If the case cannot proceed for valid cause, the
court shall not dismiss the petition but shall
archive it. After the lapse of 2 years from the
notice of archiving, the petition shall be
dismissed with prejudice for failure to
prosecute [Sec. 20]
8. Institution of Separate Action
The Rule shall neither preclude the filing of
separate criminal, civil or administrative actions
[Sec. 21]
9. Effect of Filing a Criminal
Action
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available by
motion in a criminal case. The procedure under
this Rule shall govern the disposition of the
reliefs available under the writ of amparo [Sec.
22]
7. Procedure for Hearing
Summary hearing
Hearing on the petition shall be summary
BUT The court, justice, or judge may call for a
preliminary conference to simplify the issues
Page 327 of 525
U.P. LAW BOC
10.
SPECIAL PROCEEDINGS
property, to permit entry for the
purpose of inspecting, measuring,
surveying, or photographing the
property or any relevant object or
operation thereon.
3. The order shall expire five (5) days
after the day of its issuance, unless
extended for justifiable reasons [Sec.
14(b)]
4. Requires hearing, may be availed of
both the petitioner and the respondent
5. If the court, justice or judge gravely
abuses his or her discretion in issuing
the inspection order, the aggrieved
party is not precluded from filing a
petition for certiorari with the SC
Consolidation
When a criminal action is filed subsequent
to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of amparo, the latter shall be consolidated
with the criminal action
After consolidation, the procedure under this
Rule shall continue to apply to the disposition
of the reliefs on the petition [Sec. 23]
11. Interim Reliefs Available to
Petitioner and Respondent
When available
Upon filing of the petition or at any time before
final judgment
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER
a. Temporary Protection Order
1. Issued upon motion or motu proprio
2. That the petitioner or the aggrieved
party and any member of the
immediate family be protected in a
government agency or by an
accredited person or private institution
capable of keeping and securing their
safety. If the petitioner is an
organization, association or institution
referred to in Section 3(c) of this Rule,
the protection may be extended to the
officers concerned [Sec. 14(a)]
3. Different from the inspection and
production order in that the temporary
protection order and the witness
protection order do not need a
verification and may be issued motu
proprio or ex parte
b.
Inspection Order
1. Issued only upon verified motion and
after due hearing
2. Directed to any person in possession
or control of a designated land or other
REMEDIAL LAW
c. Production Order
1. Issued only upon verified motion and
after due hearing
2. Directed to any person in possession,
custody or control of any designated
documents, papers, books, accounts,
letters, photographs, objects or
tangible things, or objects in digitized or
electronic form which constitute or
contain evidence relevant to the
petition or the return, to produce and
permit their inspection, copying or
photographing by or on behalf of the
movant.
3. In case of opposition, the court, justice
or judge may conduct a hearing in
chambers to determine the merit of the
opposition [Sec. 14(c)] Opposition may
be had on the following grounds:
i. National security
ii. Privileged nature of the information
d. Witness protection order
1. Issued upon motion or motu proprio
2. Order may refer the witnesses to
i. The Department of Justice for
admission
to
the
Witness
Protection, Security and Benefit
Program.
ii. Other government agencies, or to
accredited persons or private
institutions capable of keeping and
securing their safety [Sec. 14(d)]
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INTERIM RELIEFS AVAILABLE TO THE
RESPONDENT
1. Inspection Order
2. Production Order [Sec. 15]
Requisites
1. Verified motion of the respondent
2. Due hearing
Affidavits or testimonies of witnesses
having personal knowledge of the
defenses of the respondent
3. [Sec. 14(b)]
12. Quantum of Proof in
Application for Issuance of
Writ of Amparo
The parties shall establish their claims by
substantial evidence.
Technical rules of evidence are not strictly
observed in writ of amparo case. [Razon v.
Tagitis, G.R. No. 182498 (2009)]
Hearsay evidence, which is generally
considered inadmissible under the rules of
evidence, may be considered in a writ of
amparo proceeding if required by the unique
circumstances of the case (“totality of the
obtaining circumstances”) [Sanchez v.
Darroca, G.R. No. 242257 (2019), citing Razon
v. Tagitis (2009)]
The failure to establish that the public official
observed extraordinary diligence in the
performance of duty does not result in the
automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
establishing his or her claim by substantial
evidence. The omission or inaction on the part
of the public official provides, however, some
basis for the petitioner to move and for the
court to grant certain interim reliefs [Yano v.
Sanchez, G.R. No. 186640, 11 February 2010
[e.b.])
Before a concerned citizen may file a petition
for writ of amparo in behalf of a non-relative,
the petitioner must allege that there were no
known members of the immediate family or
REMEDIAL LAW
relatives of the aggrieved party in line with Sec.
2(c) of the RWA. Compared with a habeas
corpus proceeding, any person may apply for
the writ on behalf of the aggrieved party [Boac
v. Cadapan, G.R. Nos. 184461-62 (2011)]
Contrary to the ruling of the appellate court,
there is no need to file a motion for execution
for an amparo or habeas corpus decision …
Summary proceedings, it bears emphasis, are
immediately executory without prejudice to
further appeals that may be taken therefrom.
[Boac v. Cadapan, G.R. Nos. 184461-62
(2011)]
If respondent is a public official or
employee
Must prove that extraordinary diligence as
required as required by the applicable laws,
rules and regulations was observed in the
performance of duty
Cannot invoke the presumption that official
duty has been regularly performed to evade
responsibility or liability
If respondent is a private individual or entity
Must prove that ordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty
[Sec. 17]
With the secret nature of an enforced
disappearance and the torture perpetrated on
the victim during detention, it logically holds
that much of the information and evidence of
the ordeal will come from the victims
themselves. Their statements can be
corroborated by other evidence such as
physical evidence left by the torture or
landmarks where detained [Secretary of
National Defense v. Manalo, G.R. No. 180906
(2008)]
The writ can only be issued upon reasonable
certainty. Substantial evidence is sufficient to
grant the writ because the respondent is the
State which has more resources than the
petitioner. [Ladaga v. Magapu, G.R. No.
189689 (2012)]
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SPECIAL PROCEEDINGS
Judgment
If the allegations in the petition are proven by
substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the
privilege shall be denied [Sec. 18]
O.
WRIT OF HABEAS
DATA
[A.M. No. 08-1-16-SC]
1. Scope of Writ
The writ of habeas data is a remedy available
to any person whose right to privacy in life,
liberty or security is violated or threatened by
an unlawful act or omission of a public official
or employee, or of a private individual or entity
engaged in the gathering, collecting or storing
of data or information regarding the person,
family, home and correspondence of the
aggrieved party [Sec. 1]
Purpose
It is an independent and summary remedy
designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce
one’s right to the truth and to informational
privacy. It seeks to protect a person’s right to
control
information
regarding
oneself,
particularly in instances in which such
information is being collected through unlawful
means in order to achieve unlawful ends.
[Gamboa v. Chan, G.R. No. 193636 (2012)]
Notes:
a. Writ of Habeas data was not enacted
solely for the purpose of complementing
the Writ of Amparo in cases of extralegal
killings and enforced disappearances. It
may be availed of in cases outside of
extralegal
killings
and
enforced
disappearances. Habeas data, to stress,
was designed “to safeguard individual
freedom from abuse in the information
age.” It can be availed of as an
independent remedy to enforce one’s right
to privacy, more specifically the right to
REMEDIAL LAW
informational privacy [Vivares v. St
Theresa’s College G.R. No. 202666
(2014)]
b. Nothing in the Rule suggests that the
habeas data protection shall be available
only against abuses of a person or entity
engaged in the business of gathering,
storing, and collecting of data [Vivares v. St
Theresa’s College G.R. No. 202666
(2014)]
Nature
As an independent and summary remedy to
protect the right to privacy especially the right
to informational privacy, the proceedings for
the issuance of the writ of habeas data does
not entail any finding of criminal, civil or
administrative culpability. If the allegations in
the petition are proven through substantial
evidence, then the Court may (a) grant access
to the database or information; (b) enjoin the
act complained of; or (c) in case the database
or information contains erroneous data or
information, order its deletion, destruction or
rectification [Rodriguez v. Macapagal-Arroyo,
G.R. No. 191805 (2011)]
2. Availability of Writ
Where to file
a. RTC, at the option of the petitioner
1. Where petitioner resides, or
2. Where respondent resides, or
3. Which has jurisdiction over the place
where the data or information is
gathered, collected or stored
b. SC, CA, SB (when action concerns public
data files of government offices) [Sec. 3]
Writ is enforceable anywhere in Philippines
[Sec. 4]
No fees for indigent petitioners
The petition of the indigent shall be docked and
acted upon immediately, without prejudice to
subsequent submission of proof of indigency
not later than fifteen (15) days from the filing of
the petition [Sec. 5]
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SPECIAL PROCEEDINGS
Nexus between right to privacy, and right to
life, liberty or security
The writ, however, will not issue on the basis
merely of an alleged unauthorized access to
information about the person. Availment of the
writ requires the existence of a nexus between
the right to privacy on the one hand, and the
right to life, liberty or security on the other
[Vivares v. St. Theresa’s College, G.R. No.
202666 (2014)]
It will not issue to protect purely property or
commercial concerns nor when the grounds
invoked in support of the petition therefor are
vague and doubtful [Manila Electric Company
v. Lim, G.R. No. 184769 (2010)]
Where the petitioner was not able to sufficiently
allege that his right to privacy in life, liberty or
security was or would be violated through the
supposed reproduction and threatened
dissemination of the subject sex video, the
petition is dismissible. xxx As the rules and
existing jurisprudence on the matter evoke,
alleging and eventually proving the nexus
between one’s privacy rights to the cogent
rights to life, liberty or security are crucial in
habeas data cases, so much so that a failure
on either account certainly renders a habeas
data petition dismissible [Lee v. Ilagan, G.R.
No. 203254 (2014)]
3. Who May File
Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of
extralegal
killings
and
enforced
disappearances, the petition may be filed by
a. Any member of the immediate family of the
aggrieved party, namely the spouse,
children and parents, or
b. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph [Sec. 2]
REMEDIAL LAW
4. Contents of the Petition
A verified written petition for a writ of habeas
data should contain
a. The personal circumstances of the
petitioner and the respondent
b. The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved party
c. The actions and recourses taken by the
petitioner to secure the data or information
d. The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in
control of the data or information, if known
e. The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or information
or files kept by the respondent.
f. In case of threats, the relief may include a
prayer for an order enjoining the act
complained of, and
g. Such other relevant reliefs as are just and
equitable [Sec. 6]
Issuance of writ
Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance
of the writ if on its face it ought to issue [Sec. 7]
5. Contents of Return
The respondent shall file a verified written
return together with supporting affidavits. It
shall contain, among others, the following:
a. The lawful defenses such as national
security,
state
secrets,
privileged
communication, confidentiality of the
source of information of media and others
b. In case of respondent in charge, in
possession or in control of the data or
information subject of the petition
1. disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose
for its collection
2. the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or
information, and
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SPECIAL PROCEEDINGS
3. the currency and accuracy of the data
or information held, and
c. Other allegations relevant to the resolution
of the proceeding
A general denial of the allegations in the
petition shall not be allowed [Sec. 10]
When to file return
Respondent must file a verified written return
within 5 working days from service of the writ,
together with supporting affidavits. The 5-day
period may be reasonably extended by the
Court for justifiable reasons [Sec. 10]
Prohibited pleadings and motions
a. Motion to dismiss
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings
c. Dilatory motion for postponement
d. Motion for a bill of particulars
e. Counterclaim or cross-claim
f. Third-party complaint
g. Reply
h. Motion to declare respondent in default
i. Intervention
j. Memorandum
k. Motion for reconsideration of interlocutory
orders or interim relief orders, and
Petition for certiorari, mandamus or
prohibition against any interlocutory order
[Sec. 13]
To whom returnable
If issued by
a. SC or any of its justices - before such Court
or any justice thereof, or CA/SB or any of
its justices, or the RTC of the place where
the petitioner or respondent resides/has
jurisdiction over the place where the data
or information is gathered, stored or
collected
b. CA/SB or any of its justices - before such
court or any justice thereof, or RTC (same
with scenario SC issued and then returned
in RTC)
c. RTC - returnable before such court or judge
[Sec. 4]
REMEDIAL LAW
Effect of failure to file return
The court, justice, or judge shall proceed to
hear the petition ex parte [Sec. 14]
Procedure for hearing
Hearing on the petition shall be summary. BUT
The court, justice, or judge may call for a
preliminary conference to simplify the issues
and determine the possibility of obtaining
stipulations and admissions from the parties
[Sec. 15]
6. Instances When Defenses
May Be Heard in Chambers
a. Where the respondent invokes the defense
that the release of the data or information
in question shall compromise national
security or state secrets, or
b. When the data or information cannot be
divulged to the public due to its nature or
privileged character
[Sec. 12]
Judgment
The court shall render judgment within 10 days
from the time of petition is submitted for
decision [Sec. 16]
Appeal
Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45,
5 working days from the date of notice of the
adverse judgment [Sec. 19]
7. Consolidation
When a criminal action is filed subsequent
to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of habeas data, the petition shall be
consolidated with the criminal action [Sec. 21]
Page 332 of 525
U.P. LAW BOC
8. Effect of
Action
SPECIAL PROCEEDINGS
Filing
Criminal
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available to
an aggrieved party by motion in a criminal case
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of habeas data [Sec. 22]
9. Institution of Separate Action
The filing of a petition for the writ of habeas
data shall not preclude the filing of separate
criminal, civil or administrative actions [Sec. 20]
10. Quantum of Proof in Application
for Issuance of Writ of Habeas Data
If the allegations in the petition are proven by
substantial evidence, the court shall (a) enjoin
REMEDIAL LAW
the act complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information AND (b) grant other
relevant reliefs as may be just and equitable;
otherwise, the privilege of the writ shall be
denied [Sec. 16]
An indispensable requirement before the
privilege of the writ may be extended is the
showing, at least by substantial evidence, of
an actual or threatened violation of the right to
privacy in life, liberty or security of the victim
[Roxas v. Arroyo, G.R. No. 189155 (2010)]
Not only direct evidence, but circumstantial
evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions
consistent with the admissible evidence
adduced [Saez v. Arroyo, G.R. No. 183533
(2012)]
HOWEVER, the right to informational privacy
may yield to an overriding legitimate state
interest. [Gamboa v. Chan, G.R. No. 193636
(2012)
Page 333 of 525
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REMEDIAL LAW
Comparative table of the writs of habeas corpus, amparo, and habeas data
Habeas corpus
Amparo
Habeas data
Involves the right to
privacy in life, liberty
a. All cases of illegal
Involves
right
to
life,
or security violated or
confinement and
liberty and security threatened
by
an
detention by which
violated
or
threatened
unlawful
act
or
any person is
with violation by an omission of a public
deprived of his
unlawful act or omission official or employee, or
liberty
b. Deprivation of
of a public official or of a private individual or
Nature, scope,
rightful custody of
employee or a private entity engaged in the
function
any person including individual or entity
gathering, collecting or
minors from the
storing of data or
person entitled
Covers
extralegal information regarding
[Sec. 1]
killings and enforced the person, family,
disappearances
or home
and
Actual violation before
threats thereof [Sec. 1]
correspondence of the
writ issues.
aggrieved party [Sec.
1]
May not be suspended
except in cases of Shall
not
diminish, Shall not diminish,
invasion or rebellion increase
or
modify increase or modify
Limitations
when
public
safety substantive rights [Sec. substantive rights [Sec.
requires it [Sec. 15, Art. 23]
23]
III, 1987 Const.]
Petition filed by the Any aggrieved party
aggrieved party or by any may file a petition.
qualified person or entity
However, in cases of
in the following order:
extralegal killings and
a. Any member of the
immediate family
enforced
b. Any ascendant,
disappearances,
the
descendant or
petition may be filed by
By a petition signed and
collateral relative of
(also successive):
verified by the party for
the aggrieved within
a. Any member of the
whose
relief
it
is
Who may file
the 4th civil degree of
immediate family
intended, or by some
affinity or
of the aggrieved
person on his behalf
consanguinity
b.
Any ascendant,
[Sec. 3]
c. Any concerned
descendant or
citizen, organization,
collateral relative
association or
of the aggrieved
institution
party within the
fourth civil degree
Filing by the aggrieved
of consanguinity or
suspends the right of all
affinity
others [Sec. 2]
[Sec. 2]
Page 334 of 525
U.P. LAW BOC
Where filed
Where
enforceable
Where
returnable
SPECIAL PROCEEDINGS
a. SC or any member
thereof, on any day
and at any time
b. CA or any member
thereof in instances
authorized by law
c. RTC or a judge
thereof, on any day
and at any time,
enforceable only
within his judicial
district
[Sec. 2]
d. MTC or first level
courts in the
absence of RTC
judges in a judicial
region [Sec. 35, B.P.
129]
If
SC/CA
issued,
anywhere
in
Philippines.
If granted by the RTC or
judge thereof, it is
enforceable in any part
of the judicial region
[Sec. 21, B.P. 129 which
modified the term judicial
district in Sec. 2, Rule
102 into judicial region]
where the judge sits
If issued by:
a. SC/CA, or a
member thereof,
returnable before
such court or any
member thereof or
an RTC
b. RTC, or a judge
thereof, returnable
before himself
[Sec. 2]
REMEDIAL LAW
a. SB, CA, SC, or any
justice of such courts
b. RTC of place where
the threat, act or
omission was
committed or any of
its elements occurred
[Sec. 3]
a. At the option of
petitioner, RTC
where:
1. Petitioner
resides or
2. Respondent
resides or
3. That which has
jurisdiction
over the place
where the data
or information
is gathered,
collected or
stored
b. SC, CA, or SB – If
public data files of
government offices
[Sec. 3]
Anywhere in Philippines
[Sec. 4]
Anywhere
in
Philippines [Sec. 3]
If issued by:
a. SC or any of its
justices, returnable
before such court or
any justice thereof, or
before the CA/SB or
any of their justices,
or to any RTC of the
place where the
threat, act or
omission was
committed or any of
its elements occurred
b. CA/SB or any of their
justices, returnable
If issued by:
a. SC or any of its
justices, before
such Court or any
justice thereof, or
CA/SB or any of its
justices, or the
RTC of the place
where the
petitioner or
respondent
resides/has
jurisdiction over
the place where
the data or
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SPECIAL PROCEEDINGS
before such court or
any justice thereof, or
to any RTC of the
place where the
threat, act, or
omission was
committed or any of
its elements occurred
c. RTC or any judge
thereof, returnable
before such court or
judge
[Sec. 3]
Upon
the
final
disposition
of
such
proceedings the court or
judge shall make such
order as to costs as the
case requires [Sec. 19]
Docket fees
Essential
allegations/
Contents
petition
of
Signed and verified
either by the party for
whose
relief
it
is
intended or by some
person on his behalf,
setting forth
a. The person in
whose behalf the
application is made
is imprisoned or
restrained of his
liberty
b. Name of the person
detaining another or
assumed appellation
c. Place where he is
imprisoned or
restrained of his
liberty
d. Cause of detention
Petitioner
shall
be
exempted
from
the
payment of the docket
and other lawful fees
Court, justice or judge
shall docket the petition
and
act
upon
it
immediately [Sec 4]
Signed and verified and
shall allege
a. The personal
circumstances of the
petitioner
b. Name or appellation
and circumstances of
the respondent
c. The right to life,
liberty, and security
violated or threatened
with violation
d. The investigation
conducted, if any,
plus circumstances of
each
e. The actions and
recourses taken by
the petitioner
f. Relief prayed for
Page 336 of 525
REMEDIAL LAW
information is
gathered, stored or
collected
b. CA/SB or any of its
justices, before
such court or any
justice thereof, or
RTC (same with
scenario SC
issued and then
returned in RTC)
c. RTC, returnable
before such court
or judge
[Sec. 4]
None for indigent
petitioner
Petition
shall
be
docketed and acted
upon
immediately,
without prejudice to
subsequent
submission of proof of
indigency not later than
15 days from filing
[Sec. 5]
Verified and written
petition shall contain
a. Personal
circumstances of
petitioner and
respondent
b. Manner the right to
privacy is violated
or threatened and
its effects
c. Actions and
recourses taken by
the petitioner to
secure the data or
information
d. The location of the
files, registers, or
databases, the
government office,
U.P. LAW BOC
SPECIAL PROCEEDINGS
[Sec. 3]
May include a general
prayer for other just and
equitable reliefs
[Sec. 5]
When proper
Court or judge must,
when a petition is
presented and it appears
that it ought to issue,
grant the same and then:
● the clerk of court
(CoC) shall issue
the writ under the
seal of the court or
● in case of
emergency, the
judge may issue the
writ under his own
hand, and may
deputize any officer
or person to serve it
Also proper to be issued
when the court or judge
has examined into the
cause of restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned
[Sec. 5]
Writ may be served in
any province by the (a)
sheriff, (b) other proper
officer, or (c) person
deputed by the court or
judge.
Service
Service is made by
leaving the original with
the person to whom it is
directed and preserving
a copy on which to make
return of service.
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the
writ if on its face it ought to
issue:
● CoC shall issue the
writ under the seal of
the court or
● In case of urgent
necessity, the justice
or the judge may
issue the writ under
his or her own hand,
and may deputize
any officer or person
to serve it
[Sec. 6]
The writ shall be served
upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on
which to make a return of
service.
In case the writ cannot be
served personally on the
respondent, the rules on
Page 337 of 525
REMEDIAL LAW
and the person in
charge or control
e. The reliefs prayed
for
f. Such other
relevant reliefs as
are just and
equitable [Sec. 6]
Upon filing of the
petition, the court,
justice, or judge shall
immediately order the
issuance of the writ if
on its face it ought to
issue:
● CoC shall issue
the writ under the
seal of the court
and cause it to be
served within 3
days from
issuance or
● In case of urgent
necessity, the
justice or judge
may issue the writ
under his or her
own hand, and
may deputize any
officer or person to
serve it
[Sec. 7]
The writ shall be served
upon the respondent by
a judicial officer or by a
person deputized by
the court, justice or
judge who shall retain a
copy on which to make
a return of service.
In case the writ cannot
be served personally
on the respondent, the
rules on substituted
U.P. LAW BOC
REMEDIAL LAW
SPECIAL PROCEEDINGS
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having
or
exercising
such
custody
[Sec. 7]
May or may not be an
officer [Sec. 6]
Respondent
substituted service shall
apply [Sec. 8]
service
[Sec. 9]
shall
apply
Respondent is a public
official or employee or
private individual or entity
[Sec. 1]
A public official or
employee or a private
individual or entity
engaged in gathering,
collecting or storing
data [Sec. 1]
Respondent files
return [Sec. 9]
Respondent files the
return [Sec. 10]
The officer to whom the
writ is directed shall
convey the person so
imprisoned or restrained
before:
● the judge allowing
the writ, or
● in his absence or
disability, before
some other judge of
the same court
How executed on the day specified in
and returned
the writ, unless person
directed to be produced
is sick or infirm, and
cannot, without danger,
be brought therein.
Officer shall then make
the due return of the writ,
with the day and cause
of the caption and
restraint according to the
command thereof
[Sec. 8]
When
return
to
Contents
return
the
file On the day specified on
the writ [Sec. 8]
Within 5 working days
after service of the writ
[Sec. 9]
Same as Amparo [Sec.
10]
When the person to be
produced is imprisoned
or restrained by an
Within 5 working days
after service of the writ,
the respondent shall file a
a. Lawful defenses
such as national
security, state
secrets, privileged
of
Page 338 of 525
U.P. LAW BOC
Formalities
return
SPECIAL PROCEEDINGS
REMEDIAL LAW
officer, the person who
makes the return shall
state, and in other cases
the person in whose
custody the prisoner is
found shall state in
writing to the court or
judge before whom the
writ is returnable:
a. Truth of
custody/power over
the aggrieved party
b. If he has custody or
power, or under
restraint, the
authority and the
cause thereof, with
a copy of the writ,
order, execution or
other process, if any
upon which the
party is held
c. If the party is in his
custody or power,
and is not produced,
particularly the
nature and gravity of
the sickness or
infirmity
d. If he has had the
party in his custody
or power, and has
transferred such
custody or restraint
to another,
particularly to whom,
at what time, for
what cause, and by
what authority such
transfer was made
[Sec. 10]
verified written return
together with supporting
affidavits which shall,
contain
a. Lawful defenses
b. The steps or actions
taken to determine
the fate or
whereabouts of the
aggrieved party
c. All relevant
information in the
possession of the
respondent pertaining
to the threat, act or
omission against the
aggrieved party
d. If the respondent is a
public official or
employee, the return
shall further state
acts
1. To verify identity
of aggrieved party
2. To recover and
preserve
evidence
3. To identify and
collect witness
statements
4. To determine
cause, manner,
location, and time
of death or
disappearance
5. To identify and
apprehend
persons involved
6. To bring
suspected
offenders before
a competent court
[Sec.9]
communications,
confidentiality of
the source of
information of
media etc.
b. In case of
respondent in
charge, in
possession or in
control of the data
or information
subject of the
petition
1. A disclosure of
the data or
information
about the
petitioner, the
nature of such
data or
information,
and the
purpose for its
collection
2. The steps or
actions taken
by the
respondent to
ensure the
security and
confidentiality
of the data or
information
3. The currency
and accuracy
of the data or
information
held
4. Other
allegations
relevant to the
resolution of
the proceeding
[Sec.10]
Return or statement
of shall be signed and
sworn to by the person
who makes it if the
Respondent shall file a
verified written return
together with supporting
affidavits [Sec. 9]
Respondent shall file a
verified written return
together
with
Page 339 of 525
U.P. LAW BOC
SPECIAL PROCEEDINGS
prisoner is not produced,
unless the return is
made and signed by a
sworn public officer in his
official capacity [Sec. 11]
a. CoC who refuses to
issue the writ after
allowance and
demand, or
b. A person to whom a
writ is directed, who
1. neglects/refuses
to obey or make
return of the
same according
to the command
thereof,
2. or makes false
return,
3.
or upon demand
Penalties
for
made by or on
refusing
to
behalf of the
issue or serve
prisoner, refuses
OR for faulty
to deliver to the
return
person
demanding,
within 6 hours a
true copy of the
warrant or order
of commitment,
shall forfeit to the party
aggrieved the sum of
P1000, recoverable in a
proper action, and may
also be punished for
contempt
[Sec. 16]
REMEDIAL LAW
supporting
[Sec. 10]
a. Contempt without
prejudice to other
disciplinary actions
1. CoC who refuses
to issue the writ
after its
allowance, or
2. A deputized
person who
refuses to serve
the writ
[Sec. 7]
b. Contempt punishable
by imprisonment or a
fine
1. A respondent
who refuses to
make a return, or
2. A respondent
who makes a
false return, or
3. Any person who
otherwise
disobeys or resist
a lawful process
or order of the
court
[Sec. 16]
affidavits
a. Contempt without
prejudice to other
disciplinary actions
1. CoC who
refuses to
issue the writ
after its
allowance, or
2. A deputized
person who
refuses to
serve the writ
[Sec. 8]
b. Contempt
punishable by
imprisonment or a
fine
1. A respondent
who refuses to
make a return,
or
2. A respondent
who makes a
false return, or
3. Any person
who otherwise
disobeys or
resist a lawful
process or
order of the
court
[Sec. 11]
No, not even on highly
meritorious grounds.
Is period of
return
extendable?
Is a general
denial allowed?
Note:
Motion
for
extension of time to file a
return is a prohibited
pleading [Sec. 11]
Not allowed [Sec. 9]
Page 340 of 525
Yes, for justifiable
reasons [Sec. 10]
Not allowed [Sec. 10]
U.P. LAW BOC
SPECIAL PROCEEDINGS
Court or justice shall
proceed to hear the
petition ex parte [Sec. 12]
Effect of failure
to file return
Summary.
Summary.
Nature
Hearing
of
Date and time of
hearing
Prohibited
pleadings
The writ does not act
upon the prisoner who
seeks relief, but upon the
person who holds him in
what is alleged to be
unlawful
authority
[Caballes v. CA, G.R.
No. 163108 (2005)
However,
the
court,
justice, or judge may call
for
a
preliminary
conference to simplify